Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 388, Marzo 2019

Caso núm. 3022 (Tailandia) - Fecha de presentación de la queja:: 30-ABR-13 - En seguimiento

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

1. 62. The Committee last examined this case, which concerns allegations of anti-union dismissals, imposition of penalties for conducting an industrial action and a number of failures in the law to protect the rights of workers and trade unions, at its October 2016 meeting [see 380th Report, approved by the Governing Body at its 328th Session, paras 72–76]. On that occasion, the Committee once again urged the Government to take the necessary measures without delay to abrogate section 33 and amend section 77 of the 2000 State Enterprise Labour Relations Act B.E. 2543 (SELRA) so as to bring it fully into conformity with the principles of freedom of association. The Committee also requested the Government to keep it informed of the progress made as regards the negotiations between the State Railway of Thailand (SRT) and the State Railway Workers’ Union (SRUT) over a possible request from the former to set aside the order for damages of 15 million Thai baht (THB) imposed against seven national union leaders in response to violations of strike prohibitions, which were themselves contrary to the principles of freedom of association.
2. 63. In communications dated 17 December 2018 and 21 February 2019, two of the complainants – the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF) – requested the urgent intervention of the ILO in respect of new developments in the present case and provided additional information in this regard. In particular, the complainants allege that on 3 November 2017, the Supreme Court upheld the Central Labour Court (CLC) ruling that had ordered the seven SRUT leaders to pay a fine of THB24 million (approximately US$770,000) for their role in commencing the Occupational Health and Safety Initiative (the OSH Initiative). Since the workers did not pay the fine, on 13 July 2018, the CLC issued a writ of execution ordering the seizure and confiscation of property of the seven union leaders. Pursuant to the writ, on 30 October 2018, the Legal Execution Official issued notices of wage garnishment and seizure of the claims of the union leaders on the SRUT Saving and Credit Cooperatives of Thailand, which could, according to the complainants, entail the bankruptcy of the union leaders concerned. For instance, after deductions for the fines and penalties payable to the Legal Execution Office and other expenses, including repayment of loans, Mr Kaewvarn’s monthly take-home pay is now THB300 (approximately US$9). The complainants also argue that it seems from the judgment of the Supreme Court that the Government had failed to transmit the Committee’s conclusions to the Court. In addition, they inform that despite positive discussion with the Minister of Labour, concerns expressed over the difficulties faced by the seven trade union leaders and their families and his commitment to find possible solutions to the case as soon as possible, concrete steps are yet to be taken at the ministerial level to resolve the case. The complainants further allege that in January 2019, several SRUT leaders, including Mr Kaewvarn, were asked to appear before the Office of the National Anti-Corruption Commission (NACC) on charges of corruption for having abandoned their duty during the OSH Initiative in 2009. If found guilty, the trade unionists risk a jail term of one to ten years or a fine of THB2,000–20,000 (approximately US$64–640), or both, which, according to the complainants, constitutes judicial harassment and a clear breach of the principles of freedom of association. Finally, the complainants ask the Committee to request the Government to call on the SRT to: withdraw the fines and reimburse the seven union leaders for monies deducted; ensure that the union leaders receive full compensation for lost wages and benefits which they have not received since their reinstatement; ensure that the NACC charges are dropped; and take the necessary measures to abrogate section 33 and amend section 77 of the SELRA to bring the Act fully into conformity with the principles of freedom of association.
3. 64. The Government provides its observations on the Committee’s recommendations in a communication dated 27 September 2017. With regard to the legislative issue, it informs that the Ministry of Labour proposed to delete sections 33 and 77 of the SELRA so as to allow state enterprise labour unions to have the right to strike in line with the procedures prescribed by the law and that the draft is in the process of being submitted to the Cabinet for approval.
4. 65. The Government further provides brief information on the allegations of anti-union dismissals of SRUT members previously examined by the Committee. Concerning the six committee members of the SRUT Hat Yai branch, namely Wirun Sagaekhum, Prachaniwat Buasri, Sorawut Porthongkham, Thawatchai Bunwisut, Saroj Rakchan and Nittinai Chaiphum, who were dismissed in October 2009 for their involvement in the OSH Initiative, the Government indicates that, initially, the State Enterprise Labour Relations Committee (SELRC) ordered their reinstatement but the CLC revoked the order holding that the six dismissed defendants had intentionally committed a criminal offence against the employer and caused damage to the employer under section 37(1) and (2) of the SELRA. The Supreme Court upheld this decision and the case is now considered as final.
5. 66. Regarding the seven SRUT leaders, namely Sawit Kaewvarn, Pinyo Rueanpetch, Banjong Boonnet, Thara Sawangtham, Liem Morkngan, Supichet Suwanchatree and Arun Deerakchat, who were dismissed in 2011 and ordered to pay a fine of THB15 million (approximately US$500,000) in response to violations of strike prohibitions, the Government states that the Supreme Court confirmed the permission for their dismissal, as well as the order to pay a fine of THB15 million plus an annual interest for damages caused. The case is considered as final.
6. 67. The Committee takes note of the information provided by the Government and the complainants. In particular, the Committee welcomes the Government’s indication that sections 33 and 77 of the SELRA will be deleted so as to allow state enterprise unions to conduct strikes in line with the procedures prescribed by the law and that the draft is in the process of being approved by the Cabinet. The Committee trusts that the draft law will be finalized without delay and will be in full conformity with the principles of freedom of association, in particular as regards penalties imposable for violations of the provisions on the right to strike. In this regard, the Committee wishes to recall to the Government that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. Fines which are equivalent to a maximum amount of 500 or 1,000 minimum wages per day of abusive strike may have an intimidating effect on trade unions and inhibit their legitimate trade union activities, particularly where the cancellation of a fine of this kind is subject to the provision that no further strike considered as abusive is carried out [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 966 and 968]. The Committee requests the Government to keep it informed of any developments concerning the draft law and to provide the text once adopted.
7. 68. Concerning the dismissal of 13 members of the SRUT, the Committee recalls that: (i) six committee members of the SRUT Hat Yai branch were dismissed in October 2009 for their participation in the OSH Initiative and although the national tripartite SELRC issued an order for their reinstatement, it was revoked by the CLC and an appeal was filed with the Supreme Court; and (ii) in 2011, after the CLC granted a permission to the employer to do so, seven SRUT leaders were dismissed for organizing the OSH Initiative and an appeal was filed with the Supreme Court. The Committee also recalls that, during its previous examination of the case in October 2016, it had noted with interest that all 13 trade union leaders had been reinstated to their original roles with full back pay and that the union was considering withdrawing its appeals to the Supreme Court. However, the Committee observes from the information provided by the Government that the Supreme Court confirmed the dismissals of the 13 union leaders. The Committee notes this development with regret, especially considering that the decision to dismiss the union officials had been taken as a consequence of their legitimate trade union activities and was wholly or partly based on section 33 of the SELRA prohibiting strikes in the public sector or on other provisions read in conjunction with the above section [see 372nd Report, paras 613–615]. In these circumstances, the Committee is obliged to recall that when trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against [see Compilation, op. cit., para. 958]. The Committee requests the Government and the complainants to provide information on any new developments concerning the 13 union members and, in particular, to indicate whether the concerned workers continue to be dismissed or whether any other arrangements in this regard were reached between the employer and the trade union (the complainants in their latest communications mention reinstatement and refer to a monthly take-home pay without, however, providing clear indication as to the actual status of the workers).
8. 69. With regard to the sanctions imposed against the seven SRUT leaders in response to violations of strike prohibitions, the Committee recalls that at the time of its previous examination of the case in October 2016, negotiations were ongoing about a possible request from the employer to set aside the order for a fine of THB15 million. The Committee considers that this was an appropriate manner of handling the matter given that it had found that the legislative provisions invoked to sanction these workers were not in conformity with freedom of association principles and in light of the Government’s indication that it is indeed taking steps to amend the legislation in this respect. Nevertheless, the Committee understands from the information provided that the negotiations were not fruitful and that the Supreme Court finally upheld the CLC ruling ordering the union leaders to pay a fine of THB15 million plus a 7.5 per cent annual interest accrued from the date of filing of the original claim by the employer (which amounts, according to the complainants, to THB24 million). The Committee notes with concern the complainants’ allegation that the Committee’s conclusions in this regard [see 372nd Report, para. 617 and 380th Report, para. 76] appear not to have been brought to the attention of the Supreme Court. It further notes with concern that a writ of execution was issued ordering the seizure and confiscation of property of the seven union leaders and that, pursuant to the writ, the Legal Execution Official issued notices of wage garnishment and seizure of the claims of the leaders on the SRUT Saving and Credit Cooperatives of Thailand, which could, according to the complainants, entail the bankruptcy of the union leaders concerned. Considering that the fines against the trade union leaders have been imposed in response to violations of strike prohibitions, which are themselves contrary to the principles of freedom of association, and that their excessive amount is likely to have an intimidating effect on the trade union and its leaders and inhibit their legitimate trade union activities [see 372nd Report, para. 617], the Committee wishes to recall that acts of confiscation and occupation of property of leaders of employers’ or workers’ organizations are contrary to freedom of association if they are taken as a consequence of their activities as representatives of such organizations [see Compilation, op. cit., para. 293]. Further noting with concern that in January 2019 several SRUT leaders were asked to appear before the Office of the National Anti-Corruption Commission on charges of corruption for having abandoned their duty during the OSH Initiative in 2009 and that, if found guilty, they risk imprisonment of one to ten years or a fine of THB2,000–20,000, or both, the Committee recalls in this regard that the criminal prosecution and conviction to imprisonment of trade union leaders by reason of their trade union activities are not conducive to a harmonious and stable industrial relations climate [see Compilation, op. cit., para. 155]. In light of the above, the Committee requests the Government to endeavour to bring the parties together with a view to resolving the pending issues in this case bearing in mind the interests of all parties concerned while ensuring a climate for the development of harmonious labour relations and full respect for freedom of association. The Committee requests the Government to keep it informed of any measures taken in this regard.