Campaign Fact Sheet

Campaign Fact Sheet: Migrant Workers from Myanmar Denied
Access to Work Accident Compensation

Nang Noom’s Story: The Face Behind the Campaign On 4th December 2006 at 10am whilst collecting scrap metals at the Shangri-la Hotel construction site in Chiangmai Province in Northern Thailand, a metal column fell down from 12 stories and whilst breaking up, struck Nang Noom, a Shan worker from Myanmar, on the right side of her head and her back. As a result of this accident Ms. Noom lost consciousness and experienced the following injuries: shattered and severely damaged spinal cord, broken ribs, ripped lungs, ripped right scapula, damaged nerve system on her right hand, broken right femur, and severely weakened arms and legs. Nang Noom received treatment in hospital from 4th December 2006 until 20th February 2007. She is paralyzed from the waist down and unable to return to work ever again.

Nang Noom faced extensive challenges in rebuilding her life after this accident as a result of the Royal Thai Government’s (RTG) policy to discriminatorily deny her work accident compensation and rehabilitation assistance from the Workmen’s Compensation Fund (WCF). This denial
was on the basis of her “illegal” entry into Thailand and despite her registered “legal” work status. Nang Noom’s experiences provided the basis of an ongoing campaign to ensure an end to this systematic discrimination against all migrants in Thailand and ensure their official access to the WCF. This campaign, until now unsuccessful in actually ensuring migrant access to the WCF, is summarised in this fact sheet. The main campaign actors were the Human Rights and Development Foundation (HRDF), the State Enterprise Workers Relations Confederation of Thailand (SERC) and the Thai Labour Solidarity Committee (TLSC). This campaign was conducted at both domestic and international levels simultaneously\

Migrant Workers Denied Access to WCF
RS0711/W751: the Social Security Office (SSO) issued circular RS0711/W751 on 25th October 2001 to clarify means by which more than 2 million migrants from Myanmar, Cambodia and the Lao People’s Democratic Republic in Thailand should receive protection following accidents at work. In order to access compensation from the WCF, this circular states that migrants must satisfy the following conditions:
(a) Migrants must show registration documents and a work permit issued by government officials, together with a passport or alien identification documents Although RTG has created a system to register low-skilled labourers from neighbouring countries to legally work in Thailand for more than 20 years now, whereby migrants who enter Thailand “illegally” are issued with residence documents by the Ministry of Interior (Tor 38/1) and work permits by the Ministry of Labour providing an amnesty to work “legally” for one year at a time, these documents are not accepted by the SSO to allow migrant to access the WCF. The need for a passport is said to be paramount. Migrants usually do not have a passport as they entered Thailand illegally and have never possessed or been able to apply for one in their home country. For workers entering the RTG’s new nationality verification (NV) process or who were imported legally into the country, they now possess a “temporary passport” that apparently will allow them to enter into the WCF, although no regulations have formally been issued to confirm this right. However, only around 10% of migrants in Thailand have currently completed NV or entered the country legally.
(b) Their employer must have paid dividends into the WCF The SSO prohibits employers of migrants without the above documentation from paying dividends into the WCF however.
(c) Migrants must have submitted an application for personal income tax payments In order to pay tax a worker has to register for a tax identification number. Most migrants in Thailand cannot receive a tax identification number as they do not have a passport and other required documents to apply.

In case a migrant does not satisfy these conditions, SSO circular RS0711/W751 states employers are assigned responsibility to pay work accident compensation directly to migrants or their dependents and not the SSO’s WCF. At present, most migrants from Thailand’s neighbouring countries working in Thailand cannot satisfy the above conditions and hence their employers are responsible to pay work accident compensation benefits directly to them. This creates an informal system for compensating migrant victims of work-related accidents and disease whereby they rarely receive any compensation at all, especially if there is no union or NGO to assist in negotiations and provide free legal assistance. In addition, the SSO rarely enforces compensation responsibilities and even its own compensation orders on migrant employers.

Challenging SSO’s Systematic Discrimination
Nang Noom’s Case Proceedings: Overcoming Discrimination
• Informal and unsuccessful negotiations for work disability compensation between Nang Noom, employers and the SSO (Mar 2007)
• SSO orders Nang Noom’s employers to pay work disability compensation monthly over 15 years (July 2007)
• Nang Noom appeals the SSO’s order for her employers to pay work disability compensation monthly to the WCF Appeals Committee requesting that the WCF pay compensation directly as a one off payment as required by the Workmen’s Compensation Act (Aug 2007)
• Extensive media coverage of Nang Noom’s case (Sept/Oct 2007)
• Informal one-off settlement of SSO’s compensation order between Nang Noom and her employers (Oct 2007)
• WCF Appeals Sub-Committee considers Nang Noom’s appeal and suggests SSO revise circular RS0711/W751 on the basis it is not fair (Oct 2007)
• WCF Appeals Committee rejects Nang Noom’s appeal stating employer must pay compensation monthly and that migrants are not eligible to access WCF as a result of SSO circular RS0711/W751 (Nov 2007)
• Nang Noom launches Labour Court damages claim against employers for breach of safety laws and disability compensation (Dec 2007)
• Nang Noom appeals WCF Appeals Committee denial of migrant access to the WCF to Region 5 Labour Court (Feb 2008)
• Settlement of Nang Noom’s Labour Court Damages Claim (May 2008)
• Region 5 Labour Court rejects Nang Noom’s appeal against the decision of WCF Appeals Committee for denying her WCF access (July 2008)
• Nang Noom appeals to the Supreme Court for access to WCF (Aug 2008)

Using Domestic Mechanisms to Challenge Systematic Discrimination
• HRDF, SERC and TLSC submit complaint to the National Human Rights Commission of Thailand (NHRC) regarding the SSO’s denial of WCF access to migrants, including Nang Noom (Aug 2007)
• HRDF, SERC and TLSC meet the Minister of Labour on SSO’s denial of WCF access to migrants (Aug 2007)
• HRDF, SERC and TLSC meet SSO’s Secretary General on SSO’s denial of WCF access to migrants (Nov 2007)
• NHRC recommends revocation of RS0711/W751 as it systematically discriminates against migrants (Nov 2007)
• Myanmar migrants in Chiangmai launch Administrative Court Challenge to revoke RS0711/W751 (Apr 2008)
• Administrative Court refuses to consider Myanmar migrant’s administrative challenge to RS0711/W751 on basis it is an issue for the Labour Courts and it does not have jurisdiction to consider the case (April 2008)
• NHRC recommends in extensive report revocation of RS0711/W751 on the basis it systematically discriminates against migrants and is a human rights violation, in particular for disabled Nang Noom (Nov 2007)
• Myanmar migrant workers appeal to the Supreme Administrative Court to reconsider their challenge to revoke RS0711/W751 that was rejected by the Chiangmai Administrative Court (May 2008)
• Thai Labour Movement takes forward issue of migrant accident compensation and Nang Noom’s case in May Day activities and during National Occupational Health and Safety Day (May 2008)
• Supreme Administrative Court refuses to consider Myanmar migrant’s challenge to RS0711/W751 (Nov 2008)
• Myanmar migrants launch Central Labour Court administrative challenge to revoke RS0711/W751 (Dec 2008)
• Central Labour Court rules it has jurisdiction to consider the legality of RS0711/W751 but sends Myanmar migrant’s administrative case to Region 5 Labour Court for a final ruling on the facts and law (May 2009)
• HRDF, SERC and TLSC meet new SSO Secretary General on SSO’s denial of WCF to migrants (July 2009)
• MoL starts discussion on setting up migrant specific work accident insurance fund/scheme (Aug 2009)
• Region 5 Labour Court rejects Myanmar migrant’s administrative challenge to legality of RS0711/W751 on basis plaintiffs do not have standing to file the case (Sept 2009)
• Myanmar migrants appeal to Supreme Court in their administrative case to revoke RS0711/W751 (Oct 2009)
• Myanmar migrant accident victim (Nai Khek) launches Labour Court challenge to legality of RS0711/W751 and demands compensation directly from WCF (Oct 2009)
• Illegal Alien Workers Management Committee approves migrant accident insurance scheme idea (Dec 2009)
• Myanmar migrants launch new Central Administrative Court challenge to RS0711/W751 (Jan 2010)
• Central Administrative Court accepts jurisdiction in Myanmar migrant challenge to RS0711/W751 (Feb 2010)
• MoL issues press statement stating it is finalising set up of migrant work accident life insurance scheme run by private companies with adjudication of damages by WCF officials (Apr 2010)
• HRDF, SERC and TLSC meet Minister of Labour on SSO’s denial of WCF access to migrants and stress work accident insurance is not acceptable as alternative to migrant direct access to WCF (July 2010)
• Labour court rejects Nai Khek’s challenge to legality of RS0711/W751 (July 2010)
• Nai Khek appeals to Supreme Court for access to WCF and revocation of RS0711/W751 (Aug 2010)

Using International Mechanisms to Challenge Systematic Discrimination
• SERC start planning for activation of ILO treaty supervision mechanisms on basis denial of WCF
access to Myanmar migrants breaches C19 (Nov 2007)
• ILO Regional Director writes to Ministry of Labour stating that the denial of WCF access to
Myanmar migrants appears to breach of C19 (Jun 2008)
• SERC, HRDF and TLSC request support from international unions for submitting an ILO C19
related breach complaint to the ILO Committee of Experts (Oct 2008)
• SERC, HRDF and TLSC petition the UN Committee on Elimination of All Forms of Racial
Discrimination (CERD Committee) and UN Special Rapporteurs on Migrants, Racism and
Myanmar on the basis RTG denial of WCF access for migrants systematic discrimination in breach
of the CERD Convention and international human rights law (Mar 2009)
• Human Rights Watch and HRDF raise Thailand’s denial of migrant WCF access as being
systematic discrimination in the 11th Session of the UN Human Rights Council in Geneva and
submit an accompanying complaint to UN Special Rapporteur on Migrants (Jun 2009)
• SERC Secretary General Sawit Keawan submits an Article 23 comment protesting against RTG for breach of ILO Convention 19 to the ILO Committee of Experts during the 98th Session of
International Labour Conference in Geneva (Jun 2009)
• UN Special Rapporteur on Migrants writes a letter to RTG highlighting that denial of WCF
accident compensation to migrants is potentially in breach of international law (Oct 2009)
• Thailand’s Breach of ILO C-19 considered by ILO’s Committee of Experts in Geneva (Nov 2009)
• ILO’s Committee of Experts requests Thailand to revoke RS0711/W751 in strongly worded
observation (Mar 2010)
• Human Rights Watch and HRDF raises Thailand’s denial of migrant WCF access as being
systematic discrimination in the 14th Session of the UN Human Rights Council in Geneva and
submits accompanying complaint to UN Special Rapporteur on Migrants (Jun 2010)
• SERC submits an additional Article 23 comment against RTG for breach of ILO Convention 19
to the ILO Committee of Experts to consider in Geneva in November 2010 given development of
migrant work accident insurance scheme is discriminatory and goes against February 2010 advice
of ILO Committee of Experts (Sept 2010)

The Struggle Continues
By May 2008, through negotiations with her employer and informal settlements in and out of court, Nang Noom received a total of 584,896 Baht (around US$18, 000) in a lump sum payment for her permanent disability, which is the largest migrant work accident compensation settlement ever in Thailand. Nang Noom’s additional appeal for compensation from the WCF was sent to the Supreme Court (Labour Division) in August 2008 and is pending, unconsidered until this day.

In order to address the systematic discrimination resulting from denial of access to the WCF to migrant workers, HRDF’s Migrant Justice Programme has worked with migrant communities to challenge the legality of circular RS0711/W751 utilizing the Thai legal system (most Thai justice and administrative courts) with test cases involving migrants from Myanmar. However it now seems Circular RS0711/W751 has become unreviewable in Thailand’s courts and domestic legal remedies have been exhausted. HRDF holds little faith that existing more recent prosecutions on this issue will be successful as all cases until now are simply rejected or end up at the Supreme Court gathering dust on the shelves. The Thai justice system has failed to address discrimination against migrants in systematic or just ways.

Thailand, as a signatory to the International Labour Organisation’s Equality of Treatment (Accident
Compensation) Convention 1925 (C-19), has the obligation to provide migrant workers equal access to work accident compensation as Thai nationals. With the support from international trade unions such as ITUC, BWI and AFL-CIO, and on the ground assistance from HRDF, SERC submitted Thailand’s breach of C-19 to the ILO Committee of Experts on the Application of Conventions and Recommendations in June 2009. This committee ruled in March 2010 for the immediate revocation of the deeply concerning RS0711/W751 circular, given it breached the terms of C19 and had very negative impacts on the lives of millions of migrant workers. An additional complaint has been submitted to the ILO in September 2010.

Thailand, as signatory to the UN Convention on the Elimination of Racial Discrimination, also has the obligation not to discriminate against anyone. Hence this WCF access denial issue was submitted to UN Special Rapporteurs. In October 2009 the Special Rapportuer on the Human Rights of Migrants engaged Thailand on this issue but received no response. A Human Rights Watch and HRDF statement regarding this issue at the UN Human Rights Council on 2nd June 2009 evoked a response from the government promising that they are “actively working to protect the rights of both regular and irregular migrants in Thailand.” At a similar statement before the Council on 1st June 2010 gained no response from the RTG.

To date, most migrants in Thailand still cannot access the WCF, although since August 2009 the Ministry of Labour insists they are finalising a specific work accident compensation insurance or kind of life insurance migrant workers. SERC, HRDF and TLSC disagree with this private insurance idea, and given there has been no union or civil society consultation, met with the Minister of Labour in July 2010 to discuss the issue. The Minister provided no genuine response to this issue in the meeting and continues to press ahead with the insurance idea without consultation.

HRDF continues to work informally to settle migrant accident compensation claims, assisting more than 200 cases to date which continue to be settled for millions of Thai Baht in damages. Life threatening and life changing injuries and disease related to work are now resulting in increased compensation across the whole of Thailand, but compensation received is far less than that provided by the law. HRDF continues to challenge systematic discrimination with new test cases in the courts in Thailand and this issue continues to gain media attention and interest. But without a change of policy, when NGOs or unions are not there to assist, migrant accidents go unheard, uncompensated and accident victim’s lives are filled with suffering.