FORWARDED APPEAL (Thailand): Comment in Accordance with Article 23 of the ILO Constitution on the Royal Thai Government’s Failure to Observe the Equality of Treatment (Accident Compensation) Convention 1925 (C-19) 

Dear Friends,

The Asian Human Rights Commission (AHRC) wishes to forward to you the following urgent appeal from The State Enterprise Workers Relations Confederation (SERC) to urge ILO International Labour Standards Department to consider on the Royal Thai Government’s failure to observe the Equality of Treatment (Accident Compensation) Convention 1925 (C-19).

For more information, please contact:

Mr. Sawit Keawan (General Secretary, SERC): +66 (0) 767 519593 (Thai only)

Mr. Somboon Trapsarn (Deputy General Secretary, SERC): +66 (0) 813 520035 (Thai and English)

Mr. Andy Hall (Translator for Mr. Sawit Keawan): +66 (0) 846 119209 (English)

E-mail: migrantjustice@hrdfoundation.org or andyhall02@yahoo.com

Thank you.
Urgent Appeals Desk
Asian Human Rights Commission (AHRC)

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Ref: SERC ILO 1/52 Monday 8th June, 2009

Subject: Comment in Accordance with Article 23 of the ILO Constitution on the Royal Thai Government’s Failure to Observe the Equality of Treatment (Accident Compensation) Convention 1925 (C-19)

Dear Ms. Cleopatra Doumbia-Henry,

The State Enterprise Workers Relations Confederation (SERC) is a confederation of 43 state enterprise unions in Thailand representing over 170, 000 members and affiliated to the International Trade Union Confederation. SERC desires to communicate to the International Labour Organisation’s (ILO) Committee of Experts on the Application of Conventions and Recommendations (CoE) by means of this letter a Comment, in accordance with Article 23 of the ILO Constitution, on the Royal Thai Government’s failure to observe the Equality of Treatment (Accident Compensation) Convention 1925 (C-19).

Thailand, which ratified C-19 on 5th April 1968, currently denies Burmese migrant workers injured or killed in industrial accidents within its jurisdiction, and their dependents, equal treatment with respect to workmen’s compensation as it grants Thai nationals. As this Comment will show, Thailand does not grant workers’ compensation benefits to Burmese migrants under several rationales, all of which amount to a denial of such benefits to Burmese migrants as a class. Put differently, Thai administration does not permit the award of workers’ compensation benefits to Burmese migrants working in Thailand by means of practices that plainly contravene the equality of treatment norm erected in C-19.

Burma is a paramount problem for international law, and in particular the system of international labour standards articulated by the ILO. The predatory policies of the Burmese junta have created an environment of repression and economic deterioration that force millions of Burmese workers to seek work in Thailand. These workers are relegated to a social zone of lawlessness where they are not protected by the criminal and civil laws of Thailand, much less Thai labour laws. This wholesale denial of the rule of law for these Burmese migrants exacerbates conditions inside Burma by reducing wages of the migrants and, therefore, the remittances sent back.

More importantly however, this denial of the rule of law to migrants in Thailand, both with respect to domestic Thai standards and international labour standards, such as the principle of nondiscrimination established in C-19, contributes to maintenance of the Burmese military junta, by creating a pool of migrants without rights and recourse that Thai and Burmese employers and governmental officials can exploit. Given the significance of Burma to the ILO, the ILO should therefore remonstrate with the Royal Thai Government to induce implementation of C-19. This is an important opportunity for the ILO to again address the Burma dilemma in a productive and targeted way.

SERC has since 2006 been supporting work with Burmese migrants undertaken by the Human Rights and Development Foundation (HRDF) in Thailand. HRDF has been providing assistance to Burmese migrant work accident victims whilst also documenting the Ministry of Labour’s (MoL) response to the compensation of these individuals. Data gathered by HRDF shows Burmese work accident victims are currently being denied access to the Social Security Office (SSO) Workmen’s Compensation Fund (WCF). The WCF was established to provide formal and secure compensation to all ‘workers’ in case of work-related accidents and disease.

Since December 2006, HRDF has been supporting a Burmese work accident victim, Nang Noom Mae Seng, in her attempts to gain disability compensation from the WCF. This claim continues to be rejected by the SSO despite the National Human Rights Commission of Thailand (NHRC) concluding twice that the rejection is discriminatory and breaching human rights standards. In considering progression of other migrant accident compensation claims also supported by HRDF and also rejected by the WCF (see HRDF’s report Challenging Systematic Discrimination Against Migrant Workers in Thailand: Learning From the ‘Nang Noom’ Test Case), SERC has been led to conclude that this refusal to allow Burmese migrants access to work related accident and disease compensation from the WCF constitutes systematic discrimination.

As a result of this discrimination, impacting on approximately two million unskilled migrants in Thailand from Burma, Cambodia and Laos, SERC considers the Thai Government is failing to adhere to obligations as a signatory to C-19, in particular Article 1. The Burmese Government ratified C-19 on 30th September 1927 and Thailand is obliged to compensate Burmese migrants the same way it compensates Thai nationals for work accidents and disease.

The refusal to allow Burmese migrants access to the WCF results from their inability to satisfy conditions outlined in circular RS0711/W751, issued by the SSO on 25th October 2001. For migrants to access accident compensation directly from the WCF, the circular states that: (a) They must possess a passport or alien registration documents; and (b) Their employers must have registered for and paid a dividend into the WCF.

The system for importing workers from Burma into Thailand continues to be dysfunctional because of disagreements between the two Governments on how to verify nationality of Burmese nationals already in Thailand. Most of the two million Burmese migrants in Thailand therefore originally entered illegally without documents. However, in recognition of the need for unskilled labourers, the Thai Government has since 1996 created systems for registering Burmese migrants to work ‘legally’ once they are in Thailand. Over 500, 000 Burmese nationals currently possess residence certificates and work permits allowing them to work legally. The SSO however refuses to accept these documents in place of a passport or alien registration documents to enable migrant access to the WCF.

The SSO also prohibits employers of migrants from paying dividends into the WCF. Regulations governing the WCF state however that it is the responsibility of all employers of one or more ‘workers’ to pay these dividends and it is the duty of the SSO to enforce this. If employers of Thai workers fail to pay dividends into the WCF and their workers suffer accidents or disease at work, the SSO can ensure retrospective dividend payments are made by employers and the WCF can then pay compensation to victims directly. However, such retrospective payments are not demanded from migrant employers.

As almost all of the two million migrants in Thailand cannot satisfy the two conditions outlined in circular RS0711/ W751, the circular dictates if such workers incur a work accident or disease their employers are responsible to pay compensation to them directly, instead of the WCF. In reply to ‘good offices’ correspondence initiated by the Director of the ILO Regional Office for East Asia, the MoL confirmed this informal system for compensating migrant work accident victims. Although MoL’s letter begins ‘The WCA provides labour protection equally to both national and migrant workers who get injured at work or contract work-related diseases,’ the validity of circular RS0711/W751 is confirmed and the MoL then however contradictorily asserts ‘The WCA covers all migrant workers alike as long as they enter legally into Thailand and have a passport/certificate of identity and work permit’ and ‘The WCA grants the same treatment to migrant workers and Thai workers but it depends that they will get the compensation from the WCF or their employer.’

Burmese migrants are one of the most exploited and vulnerable groups in Thailand working in dangerous, dirty and difficult conditions from which they frequently incur work accidents and disease. Such workers also flee from an abhorrent political and economic situation in Burma. Burmese migrants rarely receive work accident compensation from employers as they rarely have courage or strength to negotiate for this compensation informally. Similarly, migrants rarely petition the SSO to enforce their right to compensation as they have little access to official systems and/or information. Even if they petition the SSO, with assistance from labour organisations, migrants are rarely able to negotiate its bureaucracy. In rare cases where SSO has ordered employers to pay compensation to migrant workers, such orders are usually ignored and require court judgments to secure enforcement. The MoL’s policy refusing migrant access to the WCF therefore impacts severely on lives of Burmese migrant work accident victims and their families.

It is not without hesitation that SERC is now seeking the assistance of the ILO in relation to Thailand’s non-adherence to C-19. In association with our network of labour and human rights groups in Thailand, SERC have met on several occasions with Ministers of Labour and senior MoL officials to request assistance to remedy the problem of migrant accident victims rarely receiving work accident compensation. Promises of assistance at these meetings were not followed through. SERC has already petitioned ILO officials in Bangkok to initiate a ‘good offices’ approach with the MoL, but this process was unproductive. Finally, two sets of recommendations from the NHRC to the MoL on this issue have been ignored by the MoL, and recently senior SSO officials have written articles clearly enunciating the MoL’s intention to contest the validity of this C-19 discrimination claim.

HRDF continues to assist migrants, including Nang Noom, to challenge the legality of circular RS0711/W751 in Thai courts. The SSO was prosecuted in Chiangmai Administrative Court in April 2008. However, a November 2008 ruling of the Supreme Administrative Court upheld the decision of Chiangmai Administrative Court rejecting jurisdiction in the case, on the basis that Administrative Courts have no power to review labour policies falling within the realms of the Labour Courts. The case was therefore submitted once again to the Central Labour Court in December 2008 and is pending. Nang Noom’s personal appeal for compensation from the WCF was appealed to the Supreme Court of Thailand (Labour Division) in August 2008 and is also pending, following the Labour Court’s rejection of her claim. However, any decision on the legality of RS0711/W751 coming from Central Labour Court or Supreme Court rulings cannot be binding as Thailand’s Courts of Justice (as opposed to Administrative Courts) have no power to revoke administrative acts of the Ministry of Labour. Circular RS0711/W751 has therefore become unreviewable in Thailand’s courts and all domestic legal remedies exhausted.

In an era of global migration, international human rights and labour standards need to be enforced against migrant receiving countries to ensure migrants are able to work in acceptable and fair conditions and that all forms of discrimination against them are removed. The failure by the Royal Thai Government to allow migrant access to the WCF must be strongly challenged to provide an example of the need for all governments to ensure protection of migrants. The continued failings of the Burmese Government to uphold human rights as well as to nurture an economically prosperous nation, which results in massive irregular outflows of Burma’s people from their country, must not provide an excuse for Thailand to exploit Burmese migrant workers in search of a better life for its purely economic benefits.

SERC considers the ILO is an international body able to assert additional pressure on Governments to remove obstacles faced by migrants seeking access to decent work and nondiscrimination. May I therefore request your forwarding of this Comment and attached supporting documents to the ILO’s Committee of Experts on the Application of Conventions and Recommendations for review at their earliest possibly opportunity. I hope that the Committee is able to use detailed consideration of this discrimination against Burmese migrant workers in Thailand and the terms of C-19 as a case study to strengthen standards on migrant rights and combat discrimination against migrants throughout the world. By considering this issue, the ILO can also keep at the top of its agenda continued failings by the Burmese military junta which remain the root cause of growing and irregular migration flows from Burma.

I look forward to your response on this issue.

Yours Respectfully,

Sawit Keawan

General Secretary: State Enterprise Workers Relations Confederation

Attachments:

1. ‘Thailand’s Systematic Discrimination Against Migrant Work-Related Accident Victims: Learning From The Nang Noom Test Case’ (HRDF Report, June 2009);
2. SSO Circular RS0711/W751 (issued 25th Oct. 2001) re: Providing Protection for Migrant

Workers Who Incur Work Related Accidents/Illnesses (n.b. unofficial English translation);

3. National Human Rights Commission of Thailand Recommendation SM0003/258 (issued 5th

Nov. 2007) (n.b. unofficial English translation);

4. Workmen’s Compensation Fund Appeals Committee Decision on the Appeal of Nang Noom

Mae Seng (issued Nov. 24th 2007 and Jan. 11th 2008) (n.b. unofficial English translation);

5. Letter from Mr. Bill Salter, Director of ILO’s Sub-Regional Office for East Asia, to the

Minister of Labour re: Workmen’s Compensation for Migrants (issued 4th June 2008);

6. Reply from the Ministry of Labour to Mr Bill Salter’s 4th June letter to the Minister of Labour

re: Workmen’s Compensation for Migrant Workers (issued on 25th Aug. 2008);

7. Judgement of the Supreme Administrative Court of Thailand, 27th November 2008 in the case

between Nang Noom Mae Seng et. al and the Social Security Office (n.b. unofficial English translation);

8. December 2008 Article: ‘Worry…From the Management of the Social Security Office’ written by Mr. Sittiphon Rattanagon, Deputy Secretary General, The Social Security Office (n.b.

unofficial English translation);

9. HRDF, TLSC and SERC draft letter to the Minister of Labour re: Request for Migrant Workers to be Eligible for Access to the Workmen’s Compensation Fund (for submission in June 2009).

PLEASE SEND URGENT APPEAL LETTERS TO:

1.Ms. Cleopatra Doumbia-Henry
Director, ILO International Labour Standards Department
4 route des Morillons
CH-1211 Geneve 22
SWITZERLAND
Fax: +41 (0) 22 798 8685
Tel: +41 (0) 22 799 6111
Website: http://www.ilo.org
E-mail: ilo@ilo.org

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 Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

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