Effect given to the recommendations of the committee and the Governing Body - Report No 333, March 2004

Case No 2181 (Thailand) - Complaint date: 18-FEB-02 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 142. The Committee last examined this case at its May-June 2003 meeting [see 331st Report, paras. 73-77]. The case relates to the automatic dissolution of the Bangchak Petroleum Public Co. Ltd. Employees’ Union (BCPEU) as a result of a purported change of status of a state-owned oil company, the Bangchak Petroleum Public Co. Ltd. In the course of it first examination of the case [see 329th Report, paras. 740-764], the Committee found that the administrative dissolution of the BCPEU and the automatic revocation of its registration and legal personality infringed a number of principles of freedom of association, and the Committee requested the restoration of the union’s legal personality and registration. Noting the registration of a new union led by another president, the Committee also requested from both the Government and the complainant information on the situation of trade union and collective bargaining rights in the company. Finally, in view of the serious consequences that the existing legislation might bring about for the existence of workers’ organizations in such cases of conversion from state to private enterprise, the Committee requested the Government to take appropriate measures so that the situation would not arise again in the future and trade union successors’ rights would be safeguarded. When it last examined the case, the Committee reiterated its requests.
2. 143. In a communication dated 15 July 2003, the complainant organization submitted further information in the form of a letter from Public Service International (PSI). PSI voiced its concern over the Government’s apparent choice to disregard the recommendations of the Committee. Thus, PSI has been informed by its affiliates in Thailand that there has been no progress towards the reversal of the revocation of BCPEU’s legal personality and registration. The State Enterprise Workers Relations Confederation (SERC) made a number of representations to the Government. The latter maintained its position which rests on the distinction between the State Enterprise Labour Relations Act of 2000 (SELRA), governing state-enterprise workers, and the Labour Relations Act of 1975 (LRA) applicable to private sector workers. Thus, according to PSI, all change in ownership, under which a state enterprise is transferred to the private sector, will result in the revocation of the legal personality and registration of its union, since there is no clause governing the transition from one status to another. Given the Government’s commitment to privatize virtually all state enterprises, in the absence of any amendment to the legislation, the Government will proceed with such revocations upon an enterprise’s privatization. PSI has attached a number of documents to its communication, which had already been brought to the attention of the Committee.
3. 144. In a communication dated 11 November 2003, the Government makes the following points. The Government recalls that the SELRA and the LRA are the two laws governing labour relations. The Bangchak Petroleum Public Co. Ltd. is not considered any longer to be a state enterprise within the framework of the SELRA due to a change in its shareholder; it now falls within the scope of the LRA. The modification of the company’s status resulted in the dissolution of the BCPEU. The Government underlines however that this modification has not affected the right to organize and the right to bargain collectively of the workers concerned, which are both guaranteed under the LRA. The Government recalls in this respect that a union, the Bangchak Labour Union, has been established in accordance with the LRA and is composed of 61 members. No labour dispute has arisen since the modification of the company’s status. The Government points out that it is not currently possible to transfer the rights which arose under the SELRA. Further, the governmental authorities are not empowered to allow an automatic transfer of the rights and status of a union originally established under the SELRA and which henceforth falls under the scope of the LRA. The Government submits in this respect that the SELRA allows the establishment of only one labour union composed of no less than 25 per cent of the employees of the state enterprise, while the LRA allows the foundation of a union with a minimum of ten employees working for the same employer or in the same description of work. The Government takes the view that a transfer of rights may cause inequity in respect of promoters and members required for the establishment of the union. Nonetheless, the Government indicates that the Department of Labour Protection and Welfare (DLPW) is currently considering the legal problems and obstacles raised by the impact that a state enterprise’s conversion has on the rights and status of its union, in order to seek feasible legislative solutions.
4. 145. The Committee takes note of the Government’s recognition of the legal difficulties engendered, under the current legislation, by the conversion from state to private enterprise in respect of the existence of a state enterprise union. The Committee also notes that the matter is under consideration by the Department of Labour Protection and Welfare (DLPW) in order to seek legislative solutions. The Committee welcomes this development and requests to be kept informed of the progress made in this respect.
5. 146. Turning to the particular case of the BCPEU, the Committee would like to recall that its administrative dissolution and the automatic revocation of its registration and legal personality constituted serious infringements of the principles of freedom of association. Since they occurred more than two years ago, these infringements should now be remedied without delay. In this respect, the Committee has some difficulty in understanding the Government’s general contention that a transfer of the BCPEU’s rights under the LRA would create inequity in respect of the number of promoters and members required for the establishment of a union; indeed, it seems that the conditions for the establishment of a union are more strict under the SELRA than under the LRA. As the Committee has already pointed out, the only question which arises is that of preferential bargaining rights. This question has not yet been clarified neither by the Government nor by the complainant. In these circumstances, the Committee firmly requests the Government once again to restore the legal personality and registration of BCPEU and trusts that the Department of Labour Protection and Welfare (DLPW) will promptly examine this particular question alongside the more general legislative issue. The Committee requests the Government to keep it informed of developments in this respect.