Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Forced Labour Convention, 1930 (No. 29) - Thailand (Ratification: 1969)
Protocol of 2014 to the Forced Labour Convention, 1930 - Thailand (Ratification: 2018)

The Committee takes note of the observations of the International Trade Union Confederation (ITUC), received on 1 September 2017.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

Articles 1(1), 2(1) and 25 of the Convention. I. Vulnerability of migrant workers in the fishing sector to practices of forced labour and trafficking. The Committee notes that, at its 329th Session (March 2017), the Governing Body approved the report of the tripartite committee that was set up to examine the representation made by the ITUC and the International Transport Workers’ Federation (ITF) alleging non-observance of the Convention by Thailand.

The Committee notes that the representation raised two major sets of allegations with regard to compliance with the Convention. The first concerns the situation of workers on board Thai fishing vessels, particularly migrant workers, who are allegedly exposed to forced labour and trafficking. The second concerns the responsibility of the State to ensure that the prohibition of forced labour is strictly enforced by effective and adequate penal sanctions. The Committee also notes that the tripartite committee examined allegations raised by the ITUC and the Government’s explanations on the measures taken to combat forced labour and trafficking in the fishing sector, particularly with regard to: (a) recruitment practices; and (b) employment practices.

(a) Recruitment practices

The Committee notes that the tripartite committee examined several issues related to: (i) brokers and recruitment fees; (ii) the issue of contract substitution; and (iii) the issue of corruption and trafficking in persons.

(i) Brokers and recruitment fees. The Committee observes that the tripartite committee found that while the Recruitment and Job-Seekers Protection Act (1985) is the main piece of legislation that regulates the recruitment practices of private employment agencies, the 1985 Act does not contain specific provisions related to the protection of migrant workers during the recruitment process, and does not stipulate procedures for regulating brokers, subcontracting agencies or manning agencies supplying migrant workers; nor does it regulate the payment of recruitment fees by workers. The tripartite committee took note of the Government’s indication that a new Royal Ordinance concerning Migrant Workers Recruitment is to be adopted to ensure better prevention of the illegal recruitment of migrant workers.

The Committee notes with interest the adoption of the Royal Ordinance on the Management of Foreign Workers Employment B.E. 2560 (23 July 2017) (Royal Ordinance B.E. 2560). According to the Government, this Ordinance has three main objectives: harsher penalties for offenders; clearer responsibilities of employers and licensed recruitment agencies; and the possibility for NGOs to use the Foreign Worker’s Management Fund for assisting and protecting workers from being exploited. Moreover, under the 2015 Royal Ordinance on the Application for Work Permit B.E. 2559, recruiting migrant workers without a work permit is an offence punishable by a prison term of up to three years or a fine of 200,000 to 600,000 Thai baht (THB) (US$6,000 to US$18,000).

The Committee further notes that the ITUC asserts in its observations that in January 2016, Greenpeace had reported that some migrant and Thai workers in certain fishing vessels had paid recruitment fees of up to $742 to brokers. In addition, they had reported not receiving any information regarding working conditions, payment of wages or the length of time at sea prior to getting on board the vessels. The payment system consists of salary advances sent home in undocumented transfers via brokers and lump sums promised to workers after completing their work at sea.

The Committee notes the Government’s indication in its report that it has prohibited the imposition of recruitment fees on migrant workers, except for certain costs such as the cost of preparing documents and transportation expenses (section 42 of the Notification of the Department of Employment on the Identification of List of Foreign Workers and the Rate of Service Fee and Cost Fee and Cost Form in bringing in Foreign Workers to work with Employers in the Kingdom, dated 14 November 2016). In case of violations, the employer is liable to six to 12 months’ imprisonment.

The Committee also notes the Government’s indication that it has been working closely with countries of origin (Myanmar, Cambodia, and Lao People’s Democratic Republic) via regular consultations and bilateral meetings to develop memoranda of understanding (MOUs) for fair recruitment practices. For example, it has agreed with the Cambodian Government to recruit Cambodian workers in the fishing sector through the Government to Government (G to G) Pilot project, according to which the Thai Government has agreed to guarantee a minimum salary of THB12,000 per month, payment of wages by bank transfer, appropriate accommodation and food, as well as health insurance and accident coverage. The International Organization for Migration (IOM) is also collaborating in the G to G Pilot project. Moreover, there is a mutual agreement to establish a Cambodian migration centre by the end of 2017. The centre will be responsible for pre-departure training, facilitating required legal documentation for migrant workers, as well as assisting the victims of forced labour or trafficking. The Committee requests the Government to continue to strengthen its efforts to ensure that migrant workers in the fishing sector are not exposed to practices that would increase their vulnerability to forced labour, in particular in matters related to the payment of recruitment fees and the recruitment by illegal brokers. It also requests the Government to provide further information on the application in practice of the Royal Ordinance on the Management of Foreign Workers Employment B.E. 2560 (2017), indicating the number and nature of violations detected and the penalties imposed for cases of violations.

(ii) Contract substitution. The Committee notes that the tripartite committee observed that migrant workers were still confronted with the practice of contract substitution. The Committee notes the Government’s indication that it is compulsory to sign a formal contract between the employer and the worker (sections 14/1 and 17 of the Labour Protection Act B.E. 2541 (1998) and section 6 of the Ministerial Regulation Concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014)) and that the employment contract has to be signed in two copies so that the worker keeps a copy. Under the agreed MOUs with source countries, there is a standard type of contract which is approved by the Department of Labour Protection and Welfare (DLPW). Such contracts must be in both the Thai language and the language of the migrant worker (now available in Khmer, Burmese, Laotian and English). The signed contract should stipulate the amount of the monthly payment of wages via bank transfer and the transfer fee that is borne by the employer. This contract should be vetted by one labour inspector from the Ministry of Labour (MOL).

Moreover, under the Fishery Law B.E. 2560 of 2017 an identification document (known as a Seabook) has to be issued for any migrant worker in the fisheries sector when the owner of a fishing vessel has signed the DLPW’s standard contract with a worker. As of June 2017, the Department of Fishery had issued 50,033 Seabooks to migrant workers, among them 30,661 from Myanmar, 18,050 from Cambodia, 1,201 from Lao People’s Democratic Republic, 31 from Viet Nam, and 90 for stateless persons. The employment of a worker on a fishing vessel without an identification document, or without a licence shall be subject to a fine (THB400,000 ($12,000)). The Committee requests the Government to continue to strengthen its efforts to ensure that, in practice, labour contract substitution is effectively prohibited. In this regard, it encourages the Government to ensure that the competent authorities register and verify that the signed contract corresponds to the original offer of employment consented to by the worker. Lastly, the Committee requests the Government to continue providing statistical information on the number of migrant fisher workers who have been issued with Seabooks documents as well as the number of infringements registered in this respect.

(iii) Corruption and trafficking in persons. The Committee notes that the tripartite committee considered that corruption of government officials can create an environment of impunity that exacerbates the situation of vulnerability of migrant fishers and constitutes a major obstacle in the identification of victims of forced labour and trafficked victims.

The Committee also notes that in its observations the ITUC asserts that, in 2016, the Criminal Court Division for Human Trafficking in Bangkok found 62 persons guilty of trafficking in persons, including several high-ranking officials who were sentenced to life imprisonment. The ITUC adds that, often, police officers or high-ranking government officials threaten witnesses, interpreters or other police officers.

The Committee takes note of the statistics provided by the Government according to which, from 2014 to 2017, there were 12 cases and 53 government officials who had been investigated of being involved in trafficking of migrant workers in the fishing sector. In 2017, ten police officers were under investigation by the Public Sector Anti-Corruption Commission. In 2016, the Anti-Money Laundering Office (AMLO) reported nine cases of trafficking in persons (forced labour and trafficking for sexual exploitation cases) for which assets were seized from the perpetrators.

It is reported by the Government that one of the major challenges faced by the multidisciplinary inspection teams on fishing vessels during the process of victims’ identification is the provision of shelters for victims or witnesses. Providing shelters for victims of trafficking is the responsibility of the Ministry of Social Development and Human Security (MSDHS). The Royal Thai Police also has the responsibility for providing accommodation and protection for persons whose trial is under way. In addition to the development of the Vessel Monitoring System (VMS), the Command Centre for Combating Illegal Fishing (CCCIF) has established the Electronics Monitoring Messaging and Electronics Reporting System (EM and ERS) which would enhance the capability to control illegal transshipment at seas, and help in detecting cases of trafficking in persons. The Committee requests the Government to continue to take proactive measures to ensure that government officials complicit with human traffickers are prosecuted and that sufficiently effective and dissuasive penalties are imposed in practice for violation of the legislation. The Committee encourages the Government to continue to provide appropriate training to law enforcement bodies in order to improve their capacity to identify cases of trafficking in persons.

(b) Employment practices

(i) Confiscation of seafarers’ identity documents (SIDs). The Committee notes that the tripartite committee highlighted that the confiscation of SIDs is a serious problem in the Thai fishing industry and that there was no specific prohibition in the legislation for such an offence.

The Committee further notes that the ITUC asserts in its observations that national courts and public authorities, such as the National Human Rights Commission of Thailand fail to recognize that the confiscation of SIDs could expose workers to exploitation and believe that confiscation of identity documents (IDs) does not necessarily imply coercion to work. Instead, judicial authorities believe that the confiscation of IDs is justified because it makes the inspection of documents easier.

The Committee notes that under section 131 of the Royal Ordinance B.E. 2560 of 2017, the confiscation of IDs is now punishable with imprisonment of up to six months or a fine. Section 68 also stipulates that the work permit should always be kept with the migrant worker during his/her work. According to the Government, the establishment of 32 Port in-Port Out (PIPO) Controlling Centres at the 22 coastal provinces has increased efficiency and effectiveness of law enforcement. During the period 1–31 August 2017, 412 fishing vessels and 4,995 fishers (1,490 Thai, 1,836 Burmese, 1,633 Cambodians and 36 Laotians) were inspected. There was no confiscation of SIDs or Seabooks, no complaint regarding non-payment of wages, and no forced labour or trafficking cases. The Committee recalls that the practice of confiscation of SIDs is a serious problem that may increase migrant fisher workers’ vulnerability to abuse, by leaving them undocumented, reducing their freedom of movement and preventing them from leaving an employment relationship. In this regard, the Committee requests the Government to strengthen its efforts to ensure that the Royal Ordinance B.E. 2560 of 2017 is effectively implemented, and that sufficiently dissuasive penalties for confiscation of SIDs are imposed on employers who are in breach of the legislation.

(ii) Withholding of wages. The Committee observes that the tripartite committee encouraged the Government to continue to strengthen its efforts to address the non-payment of wages, and ensure the effective application of the 2014 Ministerial Regulation concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014). The Committee notes the ITUC’s assertions in its observations that withholding of wages continues to be a common practice in Thailand, and that weak labour law enforcement and access to justice lead to the lack of guarantee of the payment of wages.

The Committee notes that the Government refers to section 8 of the 2014 Ministerial Regulation B.E. 2557 in which the employer has the obligation to prepare a salary statement including paid leave in the Thai language. Section 11 clearly prohibits the employer from withholding wages. If an employer intentionally refrains from the payment of the salary seven days beyond the agreed initial date of payment, he/she is required to pay an additional amount of 15 per cent of the amount withheld. In May 2015, the DLPW in cooperation with the multidisciplinary inspection teams on fishing vessels and officials from the Myanmar Embassy assisted 13 workers of a fishing vessel from Myanmar to recover their back wages. Moreover, in 2017, the DLPW helped a worker from Myanmar, aged 17, to receive 20 days of unpaid salary; the owner of the vessel was charged for employing a minor and trafficking in persons. The Committee requests the Government to ensure that the 2014 Ministerial Regulation B.E. 2557 is effectively implemented, so that all wages are paid on time and in full, and that deterrent penalties for non-payment of wages are imposed.

(iii) Physical abuse. The Committee notes that the tripartite committee emphasized the vulnerable situation of fisher workers who may face physical violence that could in certain cases amount to murder. The Committee notes that in its observations, the ITUC provides several examples of fisher workers having been physically abused. For instance, in January 2016, six Cambodian and Thai fishers, crew members of two Thai vessels died and 32 others suffered from health complications. Survivors reported that they were deprived of food for several days, and had to work for up to three days without a break.

The Committee notes the Government’s explanation that the amendment of the Anti-Trafficking Act No. 2 B.E. 2558 of 2015 increased the penalty to 20 years’ imprisonment if the offence causes the victim(s) serious injuries, and life imprisonment or death penalty if the offence causes the victim(s) death. The amendment of the Anti-Trafficking Act No. 3 B.E. 2560 of 2017 provides for more explicit provisions, including: (i) the revision of the definition of “exploitation” to cover slavery; and (ii) the revision of the definition of “forced labour or forced service” to cover confiscation of IDs and debt bondage.

While noting the legislative measures taken by the Government, the Committee expresses its deep concern about cases of fisher workers who have been victims of physical abuses or injuries and, in some cases, who have also been victims of death. Recalling the particular nature of the work of fisher workers, due in part to their isolated situation at sea, the Committee underlines the importance of taking effective measures to ensure that this category of workers is not placed in a situation of increased vulnerability, especially when they are subjected to physical violence. Accordingly, the Committee urges the Government to take the necessary measures to ensure that the Anti-Trafficking Act, as amended, is effectively implemented, and regularly monitored by the law enforcement bodies, to investigate cases of physical abuse. It also requests the Government to take the necessary measures to ensure that the appropriate sanctions are imposed on employers who are in breach of the legislation.

II. Law enforcement and access to justice. The Committee notes that the tripartite committee pointed out that the prohibition of forced labour requires that the penalties imposed by law are adequate, commensurate with the offence and strictly enforced. To this end, the tripartite committee highlighted the importance of: (a) strengthening the labour inspectorate body; and (b) providing access to justice and protection to the victims.

(a) Labour inspection and the application of penal sanctions

The Committee notes that the tripartite committee found that the Government had established multidisciplinary inspection teams on fishing vessels that have the mandate to interview workers with a view to preventing them from becoming victims of debt bondage and human trafficking in the fisheries sector.

The Committee notes the Government’s statement that there are currently 1,506 labour inspectors. This number has increased by 29.71 per cent since the last report was submitted on the application of the Convention. The Committee takes due note of the statistics provided by the Government on a series of training courses that were provided to labour inspectors, including: (i) 28 government officials were trained in May 2017 by the Ship to Shore Rights Project on forced labour indicators, interview techniques, issues of debt bondage, confiscation of ID documents, and the Anti-Trafficking Act; (ii) 80 officials at management level were trained in June 2017 by the Department of Employment (DOE) on investigation techniques and prosecution of traffickers in persons; (iii) in September 2017, senior officials from the MOL, MSDHS, DOE; Marine Police and the Royal Thai Navy were given training on how to interview workers in the fishing sector.

The Committee also notes that a certain number of language coordinators have been employed to facilitate the communication between migrant workers and government officials (Announcement of Office of the Prime Minister of November 2016). Some 70 language coordinators were appointed to work at 22 DLPW provincial offices and in 32 PIPO Controlling Centres, and ten language coordinators were working in the Migrant Workers Assistance Centre in ten provinces.

The Committee takes note of the number of inspections carried on board at sea between 2015 and 2017. It notes that, in 2016, 1,859 migrant workers, including 1,675 from Myanmar, 81 from Lao People’s Democratic Republic, and 103 from Cambodia received their entitlements. The Committee also notes that Order No. 22/2017 on the implementation to combat Illegal, Unreported and Unregulated fishing (IUU) (4th supplement) came into force in April 2017. Under the Order, any authorized official who detects unlawful practices under fishery laws, shall have the right to detain the vessel and report it to the Marine Department within 24 hours. Between April and June 2017, 135 fishing vessels were detained as a result of the implementation of Order No.22/2017.

According to the Government, there were 319 cases of trafficking in persons that were detected and investigated in 2016 in the fishing sector, including 244 cases of sexual exploitation, 32 cases of employment-related issues, and 43 cases of trafficked workers in the fishing sector. In 2016, 600 offenders were arrested and charged under the Anti-Trafficking Act, and 268 were convicted and sentenced to a range of two to ten years’ imprisonment. As of September 2017, there were 85 cases under consideration by the Public Prosecutor, and 13 cases were under consideration by the courts. The Committee encourages the Government to continue to take measures to strengthen the capacity of the labour inspectors in detecting forced labour practices and trafficking of persons, and to continue to provide statistical information on the number of cases of forced labour or trafficking concerning migrant fisher workers that have been recently registered by the labour inspectors, as well as the number and nature of the penalties imposed.

(b) Access to justice and assistance to victims

The Committee notes that the tripartite committee observed that, while the legislation provides for the establishment of different complaints mechanisms, there exist some obstacles to their effective use by workers, such as the duration of the complaints procedure, language barriers and the lack of information on preventive measures with regard to re-trafficking.

The Committee notes the Government’s statement that there are special centres to assist migrant workers (Cabinet resolution of July 2016). With regard to migrant fishing workers, the Committee notes that, a number of centres, have been established, such as the Fishing Worker Coordinator Centres and the Fisherman’s Life Enhancement Centre (FLEC). In 2016, these centres provided assistance to 15 Cambodian working in the fishing sector. They are tasked with, among other things: (i) promoting employment in the fishing sector in line with the legislation; (ii) providing protection and legal assistance to migrant fishing workers; and (iii) raising awareness of the owners of fishing businesses and other relevant stakeholders to improve collaboration in combating trafficking in persons in the fishery sector. The Committee further takes due note of the statistics communicated by the Government regarding the types of assistance provided to migrant fisher workers. It observes that 15,370 migrant workers have been transferred to other employers; 241 have received their unpaid wages; and 372 have been transferred to related organizations for assistance.

In addition, the Government refers to the establishment of 24-hour assistance channels that are accessible to migrant workers in their own languages, as well as the Complaint System for Foreign Workers which operates through the Internet.

The Committee also takes note of the statistics communicated by the Government on the number of victims of trafficking in persons who had benefited from such assistance. For instance, between January and July 2017, the MSDHS provided assistance to 224 victims of trafficking in persons, including 78 workers who were victims of forced labour in the fishing vessels. The Committee further takes note of the Government’s indication that a certain number of MOUs have been signed to tackle trafficking in persons with source countries, such as Lao People’s Democratic Republic, Myanmar and Viet Nam. In June 2017, the Thai Government and the Myanmar Government signed an agreement on the implementation procedure of repatriation and reintegration of victims under the concept of safe repatriation, safe receiving and no re-trafficking: the implementation procedure contains the standard process of repatriation and reintegration, including better data collection systems and clear guidelines. In 2016, the Government conducted safe repatriation for 243 victims in close coordination with source countries. The Committee encourages the Government to continue to take measures to ensure improved protection and assistance to migrant fisher workers, so that they do not fall into situations of forced labour or trafficking in persons. The Committee also requests the Government to provide statistical information on the number of migrant fisher workers who had recourse to legal assistance from the abovementioned assistance centres. Finally, the Committee requests the Government to provide information on the number of migrant fisher workers who have lodged a complaint via the Complaint System for Foreign Workers operating through the Internet.

The Committee is raising other matters in a request directly addressed to the Government.