Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 359, Mars 2011

Cas no 2760 (Thaïlande) - Date de la plainte: 24-NOV. -09 - Clos

Allegations: The complainant alleges that the Chairperson and members of its affiliate, the Triumph International (Thailand) Labour Union, have been kept under surveillance by the military and that the Chairperson has been physically assaulted by unidentified persons. The complainant further alleges that the union Chairperson has been dismissed by the employer (Body Fashion) for having expressed support for a political opposition leader, that the employer subsequently dismissed half of its workforce (1,959 workers) – including 13 of the 17 members of the union’s executive board – and that a strike staged by the union, as a result of these dismissals, has been violently dispersed

1. 1135. The Garment and Leather Workers Federation of Thailand (TWFT) presented a complaint against the Government of Thailand alleging violations of trade union rights in a communication dated 24 November 2009.
2. 1136. The Government sent partial observations in a communication dated 17 March 2010. It presented additional information in a communication dated 20 September 2010.
3. 1137. Thailand has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1138. The complainant indicates that the Triumph International (Thailand) Labour Union is a member of the TWFT and that TWFT is a member of the International Federation for Textile, Garment and Leather Workers (ITGLWF). The company involved in this case is Body Fashion (Thailand) Ltd (a subsidiary of Triumph International), which is a manufacturer and distributor of women’s garments, lingerie, swimwear and sportswear. The complainant alleges five main violations of trade union rights, namely: (i) the dismissal of Ms Kotchadej, Chairperson of the labour union; (ii) the dismissal of 1,959 workers, including 13 board members of the labour union; (iii) violent dispersion of a peaceful strike; (iv) arrests of three union members; and (v) interference with trade union activities.
2. 1139. Dismissal of Ms Kotchadej, Chairperson of the union. According to the complainant, after the military coup of 19 September 2006, military officials and officials from the Internal Security Command Operations (ISOC) approached the management of the company, asking them to take care of the labour union and, in particular, to see that Ms Jitra Kotchadej, who was on leave and was the Chairperson of Triumph International (Thailand) Labour Union, steered clear of politics. The military officials set up a checkpoint in front of the factory to keep a watch on any move by the union. According to the complainant, this happened since the union had joined many civic groups to oppose the coup and to campaign to urge people not to approve the 2007 Constitution during the referendum. Furthermore, the complainant states that Ms Kotchadej has been subjected to physical assaults and that none of the culprits have been identified. On 29 July 2008, Ms Kotchadej was informed by the Human Resources Manager that the Chief Executive Officer (CEO) wanted to meet with her at headquarters. Once there, she was informed that on 21 July 2008 the company had filed a case with the Central Labour Court in Samuthprakarn, asking the Court to approve the lay-off of Ms Kotchadej and that the Court had made the decision, in absentia, in favour of the company. The complainant specifies in this respect that since Ms Kotchadej is a member of the Employee Committee, any punitive action against her has to be approved by the Court.
3. 1140. The complainant further indicates that the company claimed that she had to be dismissed since she had caused damage to the company’s reputation. In a letter from the General Manager dated 30 July 2008, circulated to all employees, the reason for her lay-off referred to the fact that on 24 April 2008, Ms Kotchadej had been invited to speak in a public television programme – Krong Sathanakarr – on the topic “Pregnancy and abortion” broadcast on the NBT channel where, according to the company, she intended by her behaviour to mislead the viewers that the company supported her cause. During the programme, as part of the campaign for the promotion of reproductive rights and the right to terminate pregnancy legally and with sanitation, Ms Kotchadej wore a T-shirt saying “Not standing is not a crime, thinking differently is not criminal”. She was subsequently accused by the People’s Alliance for Democracy of wearing a T-shirt in support of Mr Chotisak On-Soong, who had been charged with lese-majesty for failing to stand up during a royal anthem, and they shored up a hate campaign against her.
4. 1141. After the lay-off announcement, the union members organized a strike and a picket in front of the factory demanding the reinstatement of Ms Kotchadej. The strike went on for 46 days until the Court agreed to retry the case on 23 September 2008. Ms Kotchadej complained to the Court that prior to the decision of the Court, she had not been informed and that she had had no role whatsoever during the hearing process. Nevertheless, during the retrial procedure, the Court decided that Ms Kotchadej had breached the “Thai national spirit” and ordered the dismissal to be immediately effective. According to the complainant, although Ms Kotchadej asked to submit an appeal, the Court rejected it.
5. 1142. The complainant considers that the dismissal was an attempt to dismantle the leadership of the union, since Ms Kotchadej had been very active in mobilizing union members in various demonstrations and actions. She had been quite involved, in particular, in a campaign of the union in June 2007 which forced the company to accept workers’ demands. As a result, on 12 September 2007, an agreement had been concluded between the company and the labour union reiterating that the company had to strictly abide by the code of conduct of Triumph International and ILO Conventions.
6. 1143. Dismissal of 1,959 workers. The complainant further indicates that on 29 June 2009, the company management decided to lay off 1,959 workers of the total 4,200 workers. Thirteen out of the 17 board members of the labour union were included among those dismissed. Only four board members were allowed to continue working in the factory. The General Manager from Switzerland informed the workers that this extensive restructuring was necessary for the company. All workers who were union members and worked in the swimwear line were dismissed, though a few workers in important positions were spared to keep the production going. All workers in this production line had been actively involved with the union’s activities and joined the 46-day strike in 2008 to protest against the dismissal of Ms Kotchadej. It adds that the dismissal orders were not applicable to the workers in another factory, in Nokhonsawan, where, prior to this, the company had moved part of its production, since at the factory in Nokhonsawan, workers had not started to get organized as a union.
7. 1144. In addition, the complainant considers that the lay-off of 1,959 workers runs counter to the agreement made between the union and the company on 6 August 1999, which provides, in the first paragraph of article 6 regarding the dismissal of workers, that if the company needs to restructure its workforce and mechanize its production or increase the mechanization and if it is necessary for the company to lay off workers, the company agrees to act in compliance with the following: (a) the decision concerning the lay-off has to be collectively agreed between the company and the labour union to ensure fairness and equality; and (b) if the dismissals are based on the above reasons, the company agrees to provide a special compensation on top of the legal compensation, as per section 118 of the 1998 Labour Protection Act for those workers who have been working longer than six years successively. The additional compensation shall be the equivalent of the total pay for 20 days based on the last remuneration rate, but the total special compensation shall not exceed the pay of 360 days combined. The special compensation shall be made available to any dismissed worker, except to those dismissed for disciplinary reasons. According to the complainant, the dismissal of the 1,959 workers was done without prior collective decision and without consultation. Furthermore, after the announcement of the dismissals, state media and officials claimed that the company had given all compensation to the workers as required by law and the company cited it as a reason to refuse to meet and negotiate with the union.
8. 1145. Violent dispersion of a peaceful strike. On 27 August 2009, the Triumph International (Thailand) Labour Union mobilized to ask about any progress made by the Government since, on 6 August, they had submitted demands to the Government asking it to mediate with the company so that the company remits all the due compensation to the laid-off workers. More than 400 of them gathered peacefully and unarmed in front of the Government House and Parliament. According to the complainant, the demonstration simply constituted the exercise of a constitutional right to gather peacefully. The workers had attempted to coordinate with the officers inside the Government House, asking for permission to hold the demonstration there. The complainant provides that on the demonstration day, officials turned on a Long Range Acoustic Device (LRAD) to disrupt the demonstration and declared their success in experimenting with this device through media coverage in mainstream television. According to the complainant, the use of the loud noise emitting device has caused many workers to suffer from ear pain, nausea, disrupted pace of heartbeat, headache, fatigue and middle-ear infection, as certified by medical examinations.
9. 1146. Arrests of three union members. According to the complainant, in the framework of the abovementioned strike, arrest warrants were issued against three union members, Ms Boonrod Saiwong, Executive Secretary of Triumph International (Thailand) Labour Union, Ms Jitra Kotchadej and Ms Sunthorn Boonyod, as per warrants Nos 2494/2009 and 2495/2009 dated 27 August 2009 citing the Criminal Law Codes 215–216 for organizing assemblies of ten persons or more, inciting unrest in the city, and refusing to end disruptive protest actions at the request of the police. The lawyers asked for a copy of the warrants, but the Court of Lower Instance refused to furnish them a copy claiming that “the issuance of the arrest warrant is part of the inquiry process and there is no reason to meet the lawyers’ request”. The lawyers have lodged an appeal before the Appeal Court against the Court’s order.
10. 1147. Alleged interference with trade union activities. Finally, the complainant alleges acts of interference by the authorities in their trade union activities. After the dismissals of the union leaders, the members of the union decided to convene a special session on a noconfidence motion against the union Chairperson, Ms Wanphen Wongsombat, and they elected Ms Suchitra Choikhunthod as the new Chairperson. The complainant indicates that in its letter Ror Ngor 0509/009712, dated 17 November 2009, addressed to the company, the Department of Labour Protection and Welfare insisted that the company should continue to contact the union through Ms Wanphen Wongsombat, despite the information provided by the union to both the company and the authorities regarding the newly elected union representatives.

B. The Government’s reply

1. 1148. In its communications dated 17 March and 20 September 2010, the Government indicates that the order given by the employer of Body Fashion (Thailand) Ltd to dismiss Ms Kotchadej had been taken in accordance with the decision of the Central Labour Court (Samuthprakarn Province) of 8 July 2008. It adds that on 27 November 2008, the Central Labour Court (Samuthprakarn Province) confirmed the previous decision, allowing the employer to dismiss Ms Kotchadej and that Ms Kotchadej has not yet introduced an appeal against this decision before the Supreme Court.
2. 1149. According to the Government, the labour law provides protection against unreasonable dismissals. In particular, the Labour Relations Act B.E.2518 (1975) contains provisions which protect the employees involved in bargaining processes or trade unions against acts of discrimination and unfair dismissal. It adds that employees who suffer from unfair treatment can file complaints with the Labour Relations Committee, which may give an ad hoc order to protect the complainant. As to the employees who are members of the Employee Committee, the employer cannot penalize or dismiss them without the authorization of a judicial body. Finally, the Government states that the complainant federation is not a party engaged in the case, and that it can therefore not understand every detail of all the matters addressed by the Court.
3. 1150. As to the allegations concerning the dismissal of 1,959 workers, the Government indicates that the employees, allegedly victims of violations of their rights, are entitled to file a complaint before the Department of Labour Protection and Welfare, but that the employees concerned in this case did not do so. As to the dismissal of the board members, the Government states that the Central Labour Court (Samuthprakarn Province) decided to allow the employer to dismiss them, but they appealed against the judgment and the case is now before the Supreme Court. Regarding the collective agreement concluded between the union and the company on 6 August 1999, the Government indicates that the complainant’s indications are not true and that there is no clause in the collective agreement stipulating that the dismissal of any employee shall be based on a mutual agreement. It adds that on 17 December 2009, the Labour Court handed down a decision stating that the employer was not responsible for the special severance pay, since the dismissal of the 250 employees, in this case, did not come within the purview of the clause of the collective agreement concerning severance pay. The Government adds that, in fact, the employees had already received the full amount of severance pay and that the Government could therefore not order the employer to reinstate them. It adds that the Department of Labour Protection and Welfare informed the employees that they have the right to file a complaint before the Labour Relations Committee, but that they did not do so. Therefore, the administrative authority could not investigate the case. Finally, according to the Government, the administrative authority has organized several meetings between the employer and the employees, and the employer agreed to provide financial support to the employees amounting to 55 million baht (approximately US$1.7 million).
4. 1151. As regards the intervention of governmental authorities during the strike, the Government considers that the complainant’s indication, according to which the strike was peacefully conducted for the purpose of requesting governmental help, is not true. According to the Government, the strikes conducted by the employees were not peaceful, as the strikers interrupted public roads without permission, which constitutes an illegal action invading the rights of the people. The responsible governors requested the strikers to stop interrupting public transportation, but the strikers did not respond to the request. According to the Government, there was no other way than implementing the law to stop this illegal action.
5. 1152. Finally, the Government states that the Ministry of Labour did not sue the strikers, but on the contrary, supported the employees by providing them with 250 sewing machines, upon their request. Finally, the Government indicates that Ms Kotchadej, the leader of the strikers and the Ministry of Labour concluded a Memorandum of Agreement on 19 February 2010 – which is attached to the communication – which led to the settlement of this case, and that all the strikers agreed to move out of the Ministry of Labour.
6. 1153. As to the arrest warrants issued against three members of the TWFT, Ms Boonrod Saiwong, Ms Jitra Kotchadej and Ms Sunthorn Boonyod, the Government indicates that this case is pending prosecution. It adds, however, that before the Court issued the three arrest warrants, all the demonstrators had dispersed peacefully without any action by the police.
7. 1154. Finally, as regards the allegations of interference in trade union activities, the Government indicates that the Department of Labour Protection and Welfare (DLPW) plays a main role in the advocacy in relation to trade union activities and that the establishment of a trade union requires permission and registration from administrative authorities. According to the Government, although the election of a union committee constitutes an internal affair, the union leader or representative, who will have to interact with third persons, should be the most appropriate person and the DLPW has to give non-legally binding opinions on whether the union leader has been correctly elected or not. The purpose of giving such opinion is maintaining good relationships between third persons and the union, which brings benefits to the union. It also states that this problem has been settled and that the DLPW has already informed the union of the results of the investigation.

C. The Committee’s conclusions

1. 1155. The Committee notes that this case concerns five allegations of violations of the principles of freedom of association and trade union rights: (i) the individual dismissal of a leader of the Triumph International (Thailand) Labour Union in violation of the fundamental principle of freedom of expression, following a judicial procedure which took place in violation of the rights of the defence; (ii) the collective dismissal of 1,959 workers, including 13 union board members, in the framework of a restructuring process, allegedly in violation of a collective agreement in force; (iii) the use of dangerous sound devices by the police forces to disperse strikers who gathered in the aftermath of the collective dismissal; (iv) the arrest of three union leaders in the framework of a strike, on the basis of unsubstantiated criminal charges; and (v) the interference by authorities in the elections of the union.
2. 1156. As regards the dismissal of Ms Kotchadej, Chairperson of the Triumph International (Thailand) Labour Union, the Committee notes that according to the complainant, on 29 July 2008, Ms Kotchadej was informed by the Chief Executive Officer (CEO) that the company had filed a case with the Central Labour Court in Samuthprakarn, asking the Court to approve her lay-off and that the Court had made the decision, in absentia, in favour of the company. The complainant specifies in this respect that since Ms Kotchadej is a member of the Employee Committee, any punitive action against her has to be approved by the Court. The complainant indicates that in a letter of the General Manager circulated to all employees, dated 30 July 2008, the reason for her lay-off referred to the fact that she had caused damage to the company’s reputation, since on 24 April 2008 she participated in a public television programme where, the complainant states that according to the company, she intended by her behaviour to mislead the viewers that the company supported her cause. During the programme, Ms Kotchadej wore a T-shirt saying “Not standing is not a crime, thinking differently is not criminal”, which was considered by the People’s Alliance for Democracy to be in support of the political activist Mr Chotisak On-Soong, who had been charged with lese-majesty for failing to stand up during a royal anthem. According to the complainant, after the lay-off announcement, the union members organized a strike and a picket, which went on for 46 days until the Court agreed to retry the case on 23 September 2008. According to the complainant, Ms Kotchadej complained to the Court that prior to the decision of the Court, she had not been informed and that she had had no role whatsoever during the hearing process. Nevertheless, during the retrial procedure, the Court decided that Ms Kotchadej had breached the “Thai national spirit” and ordered the dismissal to be immediately effective. According to the complainant, although Ms Kotchadej asked to submit an appeal, the Court rejected it. Finally, the Committee notes that the complainant considers that the dismissal was an attempt to dismantle the leadership of the union, since Ms Kotchadej had been very active in mobilizing union members in various demonstrations and actions, especially in a campaign in June 2007 which led to the conclusion, on 12 September 2007, of an agreement between the company and the labour union reiterating that the company had to strictly abide by the code of conduct of Triumph International and ILO Conventions.
3. 1157. The Committee notes that the Government indicates in this respect that the order given by the employer of Body Fashion (Thailand) Ltd to dismiss Ms Kotchadej had been taken in accordance with the decision of the Central Labour Court (Samuthprakarn Province) of July 2008. It adds that on 27 November 2008, the Central Labour Court (Samuthprakarn Province) confirmed the previous decision, allowing the employer to dismiss Ms Kotchadej and that Ms Kotchadej has not yet introduced an appeal against this decision before the Supreme Court. Furthermore, according to the Government, the labour law provides protection against unreasonable dismissals. In particular, the Labour Relations Act B.E.2518 (1975) contains provisions which protect the employees involved in the bargaining processes or trade unions against acts of discrimination and unfair dismissal. It adds that employees who suffer from unfair treatment can file complaints with the Labour Relations Committee, which may give an ad hoc order to protect the complainant.
4. 1158. While noting the above indications as to the rights and remedies in law with respect to unreasonable dismissals, the Committee notes that, according to the complainant, the judicial procedure which led to the dismissal of Ms Kotchadej, was marked by various infringements of the rights of the defence. It notes in particular that the complainant indicates that Ms Kotchadej had not been informed in due time of the company’s dismissal request to the Central Labour Court in Samuthprakarn, which would have allowed her to prepare her defence or receive legal assistance. According to the complainant, she was only informed of the Court decision, without having been heard during the hearing process. The Committee observes that these allegations are not denied by the Government. While the Government has indicated that Ms Kotchadej has not introduced an appeal against the decision on retrial, the Committee observes that the complainant has indicated that Ms Kotchadej asked to submit an appeal but that the Court rejected it.
5. 1159. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures, and that this protection is particularly desirable in the case of trade union officials. One way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 799 and 804]. The Committee also wishes to emphasize the importance which it places on respect for the basic civil liberties of trade unionists and for employers’ organizations, including freedom of expression, as essential prerequisites to the full exercise of freedom of association.
6. 1160. In this respect, the Committee wishes to underline that the Government: (i) has not provided any information on the legal grounds and facts invoked on the basis of which the Court authorized the dismissal to take place, both during the first hearing and during the retrial procedure; (ii) has not denied the alleged infringements to the due process principles as detailed by the complainant; (iii) has not commented upon the anti-union character of the dismissal alleged by the complainant; and (iv) has not denied the complainant’s assertion that the dismissal was invoked by the Court as being a breach of the “Thai national spirit”. On the basis of the elements in its possession, the Committee cannot conclude that the dismissal of Ms Kotchadej was in no way influenced by her activities as chair of the union and that, while the statement on her T-shirt may have been considered as offensive by some, the Committee has difficulty in understanding the relationship between this event and her employment, and expresses its deep concern that it gave rise to the dismissal of a trade union leader, impacting also upon the defence of the workers’ interests at the enterprise. In light of the above considerations, the Committee urges the Government to take all necessary measures to seek the immediate reinstatement of Ms Kotchadej with full pay for back wages and requests to be kept informed in this respect. If her reinstatement is found not to be possible for objective and compelling reasons, the Committee requests the Government to ensure that Ms Kotchadej is paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. The Committee requests to be kept informed without delay of the final outcome of the judicial proceedings and of all measures of redress taken.
7. 1161. In addition, the Committee notes that the complainant alleges that Ms Kotchadej has been subjected to physical assaults and that none of the culprits have been identified. The Committee notes that the Government does not provide information in its communications in this respect. The Committee requests the complainant organization to provide detailed information on the date and circumstances of these assaults, and requests the Government to take the appropriate steps to investigate these allegations and to provide information on the outcome.
8. 1162. The Committee notes that the complainant further alleges that on 29 June 2009, the company management decided to lay off 1,959 workers of a total of 4,200 workers on the ground that this extensive restructuring was necessary for the company. Thirteen out of the 17 board members of the labour union were included among those dismissed. Only four board members were allowed to continue working in the factory. All the workers who were union members and worked in the swimwear line were dismissed, though a few workers in important positions were spared to keep the production going. The Committee notes that the complainant indicates that all the workers in this production line had been actively involved with the union’s activities and joined the 46-day strike in 2008 to protest against the dismissal of Ms Kotchadej. The Committee further notes that according to the complainant, the dismissal orders were not applicable to the workers in another factory in Nokhonsawan where, prior to this, the company had moved part of its production, since at the factory in Nokhonsawan, workers had not started to get organized as a union. Furthermore, according to the complainant, the lay-off of 1,959 workers ran counter to the agreement made between the union and the company on 6 August 1999, which provides in the first paragraph of its article 6 that, if the company needs to restructure its workforces and mechanize its production or increase the mechanization and, if it is necessary for the company to lay off workers, the company agrees to act in compliance with the following: (a) the decision concerning the lay-off has to be collectively agreed between the company and the labour union to ensure fairness and equality; and (b) if the dismissals are based on the above reasons, the company agrees to provide a special compensation on top of the legal compensation as per section 118 of the 1998 Labour Protection Act for those workers who have been working longer than six years successively. The additional compensation shall be the equivalent of the total pay for 20 days based on the last remuneration rate, but the total special compensation shall not exceed the pay of 360 days combined. The special compensation shall be made available to any dismissed worker, except to those dismissed for disciplinary reasons. According to the complainant, the dismissal of the 1,959 workers was done without prior collective decision and without consultation. Furthermore, after the announcement of the dismissals, state media and officials claimed that the company had given all compensation to the workers as required by law and the company cited it as a reason to refuse to meet and negotiate with the union.
9. 1163. As to the dismissal of the board members, the Committee notes that the Government states that the Central Labour Court (Samuthprakarn Province) decided to authorize these dismissals, but they appealed against the judgment and the case is now before the Supreme Court. Regarding the collective agreement concluded between the union and the company on 6 August 1999, the Committee notes that the Government states that the complainant’s indications are not true and that there is no clause in the collective agreement stipulating that the dismissal of any employees shall be based on mutual agreement. It adds that on 17 December 2009, the Labour Court handed down a decision stating that the employer was not responsible for the special severance pay, since the dismissal of the
10. 250 (sic) employees, in this case, did not come within the purview of the clause of the collective agreement concerning severance pay. The Committee notes that the Government adds that, in fact, the employees had already received the full amount of severance pay and that the Government could therefore not order the employer to reinstate them. It adds that the Department of Labour Protection and Welfare (DLPW) informed the employees that they have the right to file a complaint before the Labour Relations Committee, but that they did not do so. Therefore, the administrative authority could not investigate the case. Finally, the Committee notes that according to the Government, the administrative authority has organized several meetings between the employer and the employees, and the employer agreed to provide financial support to the employees amounting to 55 million baht (approximately US$1.7 million).
11. 1164. While observing that the Government contests the existence of a clause in the 1999 collective agreement stipulating that, in the framework of a restructuring process, the decision concerning the lay-off has to be collectively agreed between the company and the labour union, the Committee further notes that the Government has not replied to the allegations concerning the application by the company of anti-union criteria when identifying the workers to be dismissed. Finally, the Committee notes that it has not received any information from the Government on whether consultations did indeed take place between the workers and the employer in this case.
12. 1165. The Committee also recalls that the Government is responsible for preventing all acts of anti-union discrimination and that it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. If workers who are trade union members are not immune from the impact of general company restructuring programmes, the application of staff reduction programmes must not be used to carry out acts of anti-union discrimination and a corporate restructuring should not directly or indirectly threaten unionized workers and their organizations. It also recalls that in cases of staff reductions it has drawn attention to the principle contained in the Workers’ Representatives Recommendation, 1971 (No. 143), which mentions among the measures to be taken to ensure effective protection to these workers that recognition of a priority should be given to workers’ representatives with regard to their retention in employment in case of reduction of the workforce (article 6.2(f)) [see Digest, op. cit., paras 796, 797, 817 and 832].
13. 1166. The Committee recalls that it can examine allegations concerning economic rationalization programmes and restructuring processes only in so far as they might have given rise to acts of discrimination or interference against trade unions. The Committee further recalls that in cases where new staff reduction programmes are undertaken, negotiations should take place between the enterprise concerned and the trade union organizations [see Digest, op. cit., paras 1079 and 1082]. Given the allegations in the present case, the Committee requests the Government to inquire into whether anti-union criteria were applied when identifying the employees to be dismissed. The Committee further requests the Government to provide a copy of the decision of the Supreme Court on the appeal introduced by the dismissed board members of the union as soon as it is handed down, as well as of any other relevant judicial decisions. The Committee also requests the complainant organization to provide a copy of the relevant provisions of the collective agreement, including article 6, which allegedly stipulates that if the company needs to restructure its workforces, the decision concerning a lay-off has to be collectively agreed.
14. 1167. The Committee notes that according to the complainant, on 27 August 2009, the Triumph International (Thailand) Labour Union mobilized to ask about any progress made by the Government on its request of 6 August that the Government mediate with the company so that it remits all the compensation due to the laid-off workers. More than 400 dismissed workers gathered peacefully and unarmed in front of the Government House and Parliament. According to the complainant, the demonstration simply constituted the exercise of a constitutional right to gather peacefully. The workers had attempted to coordinate with the officers inside the Government House, asking for permission to hold the demonstration there. The complainant indicates that on the day of the demonstration, officials turned on a Long Range Acoustic Device (LRAD) to disrupt the demonstration. The complainant states that the Government declared its success in experimenting with this device through media coverage in mainstream television. The use of the loud noise emitting device has caused many workers to suffer from ear pain, nausea, disrupted pace of heartbeat, headache, fatigue and middle-ear infection, as certified by medical examinations.
15. 1168. The Committee notes that the Government contests the allegation made by the complainant that the strike was peacefully conducted for the purpose of requesting governmental help. According to the Government, the strikes conducted by the employees were not peaceful, as the strikers interrupted public roads without permission, which constitutes an illegal action invading the rights of the people. The responsible governors requested the strikers to stop interrupting public transportation, but the strikers did not respond to the request. According to the Government, there was no other way than implementing the law to stop this illegal action. The Government adds that all the demonstrators dispersed peacefully without any action by the police.
16. 1169. The Committee recalls that the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order and that the intervention of the police should be in proportion to the threat to public order. It further recalls that governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order [see Digest, op. cit., para. 647]. Noting that the complainant has provided images of the use of the LRAD during the protest and that the Government does not deny its use to disperse the strikers during the 27 August 2009 demonstration, the Committee urges the Government to undertake appropriate investigations into this matter, including the impact of the use of the LRAD on the striking workers and to take the necessary measures to ensure that police forces or other government authorities do not intervene in demonstrations with unjustified or excessive force and in a manner that is likely to cause injury to the striking workers. It further requests the Government to ensure the strict observance of due process guarantees in the context of any surveillance operations of workers’ activities by the army, in order to guarantee that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members. The Committee urges the Government to keep it informed in this respect.
17. 1170. The Committee notes that the Government indicates that Ms Kotchadej, the leader of the strikers, and the Ministry of Labour concluded a Memorandum of Agreement dated 19 February 2010 bringing an end to the dispute.
18. 1171. The Committee notes that the complainant indicates that in the framework of the abovementioned strike, arrest warrants were issued against three members of the Triumph International (Thailand) Labour Union, Ms Boonrod Saiwong (Executive Secretary), Ms Jitra Kotchadej and Ms Sunthorn Boonyod, as per warrants Nos 2494/2009 and 2495/2009 dated 27 August 2009 citing the Criminal Law Codes 215–216 for organizing assemblies of ten persons or more, inciting unrest in the city and refusing to end disruptive protest actions at the request of the police. Furthermore, the Committee notes the complainant’s allegations that the Court of Lower Instance refused to supply the lawyers a copy of the warrants claiming that “the issuance of the arrest warrant is part of the inquiry process and there is no reason to meet the lawyers’ request”. The lawyers have lodged an appeal before the Appeal Court against the Court’s order. The Committee notes that the Government indicates in this respect that the case is pending prosecution.
19. 1172. Recalling that the detention of trade unionists on the grounds of trade union activities constitutes a serious obstacle to the exercise of trade union rights and that authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike, since such measures entail serious risks of abuse and constitute a grave threat to freedom of association [see Digest, op. cit., paras 66 and 671), the Committee expresses its deep concern at the arrests of the three trade union leaders, particularly given that the sections of the Criminal Law Codes 215–216 referred to could also encompass legitimate trade union activities. The Committee urges the Government to provide without delay updated information on their present situation, including on the specific charges filed against them. Should these charges be related to their legitimate trade union activities and bearing in mind the Memorandum of Agreement concluding the dispute, it urges the Government to ensure that the charges are immediately dropped. The Committee also requests the Government to ensure that their lawyers will be allowed to have full access to the arrest warrants, as well as to any other relevant information for their proper defence. Finally, it requests the Government to provide a copy of any relevant judicial decision in this respect, in particular, a copy of the appeal decision on the request made by the lawyers to receive a copy of the arrest warrants.
20. 1173. The Committee notes that the complainant alleges acts of interference by the authorities in their trade union activities. More particularly, according to the complainant, after the dismissals of the union leaders in the framework of the restructuring process, the members of the union decided to convene a special session on a no-confidence motion against the union Chairperson, Ms Wanphen Wongsombat, and they elected Ms Suchitra Choikhunthod as the new Chairperson. The complainant alleges that in its letter addressed to the company, dated 17 November 2009, the DLPW insisted that the company should continue to contact the union through Ms Wanphen Wongsombat, despite the information provided by the union to both the company and the authorities regarding the newly elected union representatives.
21. 1174. The Committee notes that the Government indicates in this respect that the DLPW plays a main role in the advocacy in relation to trade union activities and that the establishment of a trade union requires permission and registration from administrative authorities. According to the Government, although the election of a union committee constitutes an internal affair, the union leader or representative, who will have to interact with third persons, should be the most appropriate person and the DLPW has to give non-legal binding opinions on whether the union leader has been correctly elected or not. According to the Government, the purpose of giving such opinion is maintaining a good relationship between third persons and the union, which brings benefits to the union.
22. 1175. The Committee underlines that any consideration given by the authorities regarding the appropriateness or suitability of a candidate or an elected representative of a trade union, constitutes a direct violation of the principle of non interference in trade union activities enshrined in Article 3 of Convention No. 87. Accordingly, it notes that the interference of the DLPW in the elections of the Triumph International (Thailand) Labour Union Chairperson is in direct contradiction of the freedom of association principles. While observing the Government’s statement that this problem has been settled and that the DLPW has already informed the union of the result of the investigation, the Committee urges the Government to take the necessary measures to ensure, should this not already be the case, that the newly elected Chairperson is recognized by the authorities and the employer so that the right of workers to elect their representatives freely is fully ensured. It further requests the Government to take steps so that, in the future, the authorities refrain from any interference in the exercise of the right of workers’ organizations freely to elect their representatives, as guaranteed by Convention No. 87. It requests the Government to keep it informed in this respect. The Committee expects that the Government will make all efforts to provide the information requested including by seeking information from the employer through the relevant employers’ organizations concerned.

The Committee's recommendations

1. 1176. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As to the dismissal of Ms Kotchadej, Chairperson of the Triumph International (Thailand) Labour Union, the Committee:
   • (i) concludes that the dismissal of Ms Kotchadej may indeed have been linked to the exercise of legitimate trade union activities;
   • (ii) requests the Government to take all necessary measures to seek her immediate reinstatement with full pay for back wages. If her reinstatement is found not to be possible for objective and compelling reasons, the Committee requests the Government to ensure that Ms Kotchadej is paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. The Committee requests the Government to keep it informed without delay in this respect.
   • (b) The Committee further requests the Government:
   • (i) to keep it informed of the final outcome of the judicial proceedings and of all measures of redress taken;
   • (ii) to supply a copy of the two judicial decisions authorizing the dismissal of Ms Kotchadej and to take the necessary measures to ensure that these decisions will be shortly revised in the framework of a procedure which will fully ensure her participation in the hearings, her right to a due process and the respect of her rights of defence;
   • (iii) requests the Government and the complainant to provide additional information on the appeal lodged by Ms Kotchadej against the decision of the Court dated 27 November 2008 confirming her dismissal (as alleged by the complainant but as contested by the Government).
   • (c) As regards the dismissal of the 1,959 workers, the Committee:
   • (i) requests the Government to inquire into whether anti-union criteria were applied when identifying the employees to be dismissed;
   • (ii) requests the Government to provide a copy of the decision of the Supreme Court on the appeal introduced by the dismissed board members of the union, as soon as it is handed down, as well as of any other relevant judicial decisions;
   • (iii) requests the complainant organization to provide a copy of the relevant provisions of the collective agreement, including article 6, which allegedly stipulates that if the company needs to restructure its workforces, the decision concerning a lay-off has to be collectively agreed.
   • (d) As to the dispersion of the demonstration, which took place on 27 August 2009, noting that the Government does not deny the use of LRAD to disperse the strikers, the Committee:
   • (i) urges the Government to undertake appropriate investigations into this matter, including the impact of the use of LRAD on the striking workers and to take the necessary measures to ensure that police forces or other government authorities do not intervene in demonstrations with excessive force and in a manner that is likely to cause injury to the striking workers;
   • (ii) further requests the Government to ensure the strict observance of due process guarantees in the context of any surveillance operations of workers’ activities by the army, in order to guarantee that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members. The Committee urges the Government to keep it informed in this respect.
   • (e) The Committee expresses its concern at the arrests of the three trade union leaders, particularly given that the sections of the Criminal Law
     • Codes 215–216 referred to could also encompass legitimate trade union activities. The Committee further:
   • (i) urges the Government to provide updated information on their present situation, including on the specific charges filed against them. Should these charges be related to their legitimate trade union activities and bearing in mind the Memorandum of Agreement concluding the dispute, it urges the Government to ensure that the charges are immediately dropped;
   • (ii) requests the Government to ensure that their lawyers will be allowed to have full access to the arrest warrants as well as to any other relevant information for their proper defence;
   • (iii) requests the Government to provide a copy of any relevant judicial decision in this respect, in particular, a copy of the appeal decision on the request made by the lawyers to receive a copy of the arrest warrants.
   • (f) Noting that the interference of the Department of Labour Protection and Welfare in the elections of the Triumph International (Thailand) Labour Union Chairperson is in direct contradiction of the freedom of association principles, the Committee:
   • (i) urges the Government to take the necessary measures to ensure, should this not already be the case, that the newly elected Chairperson is recognized by the authorities and the employer so that the right of workers to elect their representatives freely is fully ensured;
   • (ii) requests the Government to take steps so that, in the future, the authorities refrain from any interference in the exercise of the right of workers’ organizations freely to elect their representatives, as guaranteed by Convention No. 87;
   • (iii) requests the Government to keep it informed in this respect.
   • (g) The Committee expects that the Government will make all efforts to provide the information requested including by seeking information from the employer through the relevant employers’ organizations concerned.
   • (h) Finally, as to the alleged assaults against Ms Kotchadej, the Committee requests the complainant organization to provide detailed information on the date and circumstances of these assaults and, once this information is provided, requests the Government to take the appropriate steps to investigate these allegations and to provide information on the outcome.