SERC letter to ILO

Ref: SERC ILO 1/53
21st September 2010

Ms. Cleopatra Doumbia-Henry
Director, ILO International Labour Standards Department
4 route des Morillons
CH-1211 Genève 22
Switzerland

Subject: Comment in Accordance with Article 23 of the ILO Constitution on the Royal Thai
Government’s (RTG) 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 which is affiliated to the
International Trade Union Confederation (ITUC). SERC desires to communicate a Comment to the
International Labour Organisation’s (ILO) Committee of Experts on the Application of
Conventions and Recommendations (CEACR) by means of this letter, in accordance with Article
23 of the ILO Constitution, on the Royal Thai Government’s (RTG) continued failure to observe
the Equality of Treatment (Accident Compensation) Convention 1925 (C-19).

This particular Comment is a follow up to a previous Comment (supporting document one)
submitted by SERC to the CEACR on 5th June 2009 during the 98th Session of the International
Labour Conference (ILC). The CEACR considered this latter Comment in November 2009 and
made an observation on the RTG’s adherence to C19 which is discussed in detail at page 715 of
the Report of the CEACR to the 99th Session of the ILC (supporting document two). SERC
expresses our sincere thanks to the CEACR for prompt and careful consideration of our Comment.

Thailand, which ratified C-19 on 5th April 1968, continues to deny to migrant workers (and their
dependents) from Myanmar who are injured or killed in workplace accidents within its jurisdiction
treatment with respect to workmen's compensation which is equal to what it grants Thai nationals. As this Comment again shows, Thailand continues to fail to grant workers' compensation benefits to such migrants using several rationales, all of which amount to a denial of such benefits to these migrants as a class of persons. SERC maintains that the RTG continues not to permit the award of workers' compensation benefits to migrants from Myanmar working in Thailand by means of practices that plainly contravene the equality of treatment norm established in C-19.

As SERC repeats from our previous Comment, Myanmar continues to be a paramount problem for
international law and in particular the system of international labour standards articulated by the ILO. In addition, the predatory policies of Myanmar’s government continue to create an environment of repression and economic deterioration that drive millions of workers from Myanmar to seek work in Thailand. These low skilled workers, who make up around 5 to 10 percent of Thailand’s labour force, 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.

More importantly however, this denial of the rule of law to migrants from Myanmar in Thailand,
both with respect to domestic Thai laws as well as international labour standards such as the
principle of non-discrimination established in C-19, contributes to creating a pool of workers
without rights and recourse that Thai employers and officials can exploit at will. Given the
significance of Myanmar to the ILO, we request the organisation to once again remonstrate with
the RTG to induce its adherence to C-19 by emphasising the RTG’s need to protect workers who
have left Myanmar because of human rights abuses and economic mismanagement.

SERC has since 2006 been collaborating in work with migrants from Myanmar undertaken by the
Human Rights and Development Foundation (HRDF) in Thailand. HRDF has been providing
assistance to migrant work accident victims from Myanmar and documenting the Ministry of
Labour’s (MoL) response to the compensation of these individuals. Data gathered by HRDF shows
work accident victims from Myanmar continue to be 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.

As CEACR has previously observed from HRDF’s 2009 report Challenging Systematic
Discrimination against Migrant Workers in Thailand: Learning From the ‘)ang )oom’ Test Case,
since December 2006 HRDF has been supporting a work accident victim from Myanmar, Nang
Noom Mae Seng, in her attempts to gain disability compensation from the WCF. This claim
continues to be rejected by the SSO despite decisions by the National Human Rights Commission
of Thailand (NHRC) that the rejection is discriminatory and breaches human rights standards.

During 2009 and 2010 HRDF also supported other migrants from Myanmar seeking to gain access
to work accident compensation from the WCF, in particular the cases of Nai Khek and Nai Htun
(updates on all these test cases are outlined in supporting documents three and four). When
considering the progression of all these cases and other migrant accident compensation claims that have also been rejected by the WCF, SERC must conclude that the RTG’s continued refusal to allow migrants from Myanmar access to work-related accident and disease compensation from the WCF constitutes systematic discrimination.

As a result of this discrimination, which impacts on at least two million low skilled migrants in
Thailand from Myanmar who work in particularly dangerous and accident prone workplaces,
SERC considers the RTG continues to fail to adhere to its obligations as a signatory to C-19, in
particular Article 1.1 Myanmar’s Government ratified C-19 on 30th September 1927 and Thailand
is obliged to compensate migrants from Myanmar the same way it compensates Thai nationals for
work-related accidents and disease.

As the CEACR is already well aware, the refusal to allow migrants from Myanmar access to the
WCF results from their continued 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
(supporting document five).

The systems for managing irregular migration from Myanmar into Thailand continue to be
dysfunctional because of difficulties experienced by the two Governments in verifying the
nationality (nationality verification or “NV”) of Myanmar person’s already in Thailand, and also
because of an inability to begin fresh import of “legal” workers from Myanmar into Thailand. As a
result, most of the estimated two million migrants from Myanmar currently working in Thailand
originally were smuggled into the country illegally without documents or a passport. However, in
recognition of a need for low skilled labourers, the RTG has since 1996 created “temporary”
systems for registering low skilled migrants from Myanmar to lawfully remain and work in
Thailand for one year pending deportation for illegal entry by means of the issuance of Tor 38/1
certificates by the Ministry of Interior (since 2004) and work permits by the MoL.

As of August 31st 2009 this “amnesty” programme for “illegal” migrant entries resulted in over 1.1
million workers from Myanmar registering for Tor 38/1 certificates and work permits which
allowed them to work legally in Thailand until 28th February 2010. As of 28th February 2010,
registration processes were extended only for those willing to submit biographical information to
Myanmar’s authorities as required for entrance into the NV process. Over 800, 000 migrants from
Myanmar entered NV, renewed their work permits and currently possess Tor 38/1 certificates.
According to a Cabinet resolution of 19th January 2010 (supporting document six), these persons
have been granted permission to remain in Thailand to work until 28th February 2012 in order to
complete NV to legalise their status and then can remain in Thailand for a further 4 years after
this. The SSO however refuses to accept the Tor 38/1 certificate and accompanying work permit
possessed by these 800, 000 Myanmar workers in place of a passport, temporary passport or
alien registration documents, and on this basis, continues to deny them access to the WCF.

As of September 2010, only around 100, 000 migrants from Myanmar in Thailand have completed
NV and only around 500 migrants have entered legally from Myanmar to Thailand through formal
import channels. These workers now possess temporary passports with an accompanying Thai
visa issued for an initial 2 years and extendable for another 2 years. Such workers also possess
“green” work permits which reflect their “legal” status. As such persons are now considered to be
“legally” in Thailand the RTG states they can access the WCF and social security systems in the
same way as Thai workers. It is important to note however that the MoL has yet to issue
regulations stating migrants can access the WCF and there have been no public awareness
raising activities for migrants concerned on their rights. As a result, there is much confusion
remaining in practice about migrants’ ability to access the WCF, even upon completion of NV.

The NV process continues to be confusing for migrants and their employers given the failure by
MOL officials to conduct effective public awareness raising and implementation of NV has been
generally very slow. There is a lack of transparency of brokers that are used as part of the
complex 13-step process with unreasonably high costs being charged and a concurrent increase
in migrant debt bondage. In addition, importantly there is understandable fear amongst those
migrants from Myanmar who entered the process that the Myanmar authorities will misuse their
biographical information now or in the future. For this reason, evidence suggests many of these
workers entered incorrect information on NV forms and will not complete the process. Finally,
only around 1.1 million migrants from Myanmar were eligible for the process as “registered”
migrants prior to 28th February 2010 as the process was not open to unregistered migrants.
Over 800, 000 migrants from Myanmar remain working in Thailand without temporary passports
but instead with Tor 38/1 temporary stay permission and work permits awaiting NV. In addition,
an estimated 1 million migrants remain working in Thailand unregistered, ineligible for NV and
subject to deportation. Finally, a significant number of previously registered migrants are refusing
to enter NV and a not insignificant number of migrants who have entered NV have put false
information into the process. As a result, most migrants from Myanmar in Thailand have not yet
completed the NV process and hence continue to be unable to satisfy the two conditions outlined
in circular RS0711/ W751 for access to the WCF.

The SSO also prohibits employers from paying dividends into the WCF for migrants from
Myanmar who have yet to complete NV or do not have a temporary passport. 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
enforced against migrant employers.

As most of the estimated two million migrants from Myanmar in Thailand continue to be unable to
access the WCF, circular RS0711/ W751 dictates if such workers incur a work accident or disease
their employers are responsible to pay compensation to them directly, instead of the WCF.
However, as the CEACR noted in it’s report to the 99th session of the ILC regarding RTG’s
compliance with C19, “The Committee notes that the Government does not contest the fact that,
in practice, as explained by the SERC, the SSO orders obliging the employer to pay compensation
directly to the worker concerned are usually ignored, as migrant workers are unable to engage in
costly and lengthy judicial proceedings necessary to enforce the SSO orders.”

Migrants from Myanmar 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. HRDF has documented over 200 Myanmar migrants’ work accidents in the past few years
and this is from their work in only two of Thailand’s 77 provinces. Although official statistics are
unavailable, it would not be unreasonable to estimate that thousands of migrants from Myanmar
incur work accidents each year and many more suffer or will in the future suffer work diseases.

Migrants rarely receive accident compensation from employers following work-related accidents
and disease 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, much of which is only available in written Thai
language which is not understood by migrants from Myanmar. Even if they petition the SSO, with
assistance from labour organisations, migrants are rarely able to negotiate its bureaucracy. In
rare cases where SSO orders employers to pay compensation to migrants, such orders are
usually ignored and require court judgments to secure enforcement. In SERC’s opinion, the MoL’s
policy refusing migrant access to the WCF continues to impact severely on the lives of thousands
of migrant work accident victims from Myanmar and their families.

In concluding remarks by the CEACR in its report to the 99th session of the ILC, the Committee
strongly urged the RTG to revoke SSO Circular RS0711/W751 and allow migrant access to the
WCF, stating that “… in a situation where equal treatment of migrant workers may be jeopardized
on a mass scale leading to exploitation and suffering, the bona fide application of the Convention
[C19] would require member States to deploy special and urgent efforts commensurate with the
gravity of the situation … With regard to the situation in law, the Committee observes that, while
the Workmen’s Compensation Act grants foreign workers the right to equality of treatment, the
SSO circular RS0711/W751 subjects the exercise of this right to fulfillment of certain conditions,
which in the current situation effectively deprives migrant workers of protection by the WCF
enjoyed by the Thai workers… The Committee asks the Government to review the policy of the
SSO … in the light of the above guiding principles and safeguards established by international law
for the promotion of equal treatment of foreign workers. Taking into account the gravity of the
situation, the Committee asks the Government to instruct the SSO to take positive and urgent
measures lifting restrictive conditions and facilitating access of migrant workers to the WCF
irrespective of their nationality.”

During 2009 and 2010, some parts of the RTG appear to have finally accepted the premise that
migrants from Myanmar who incur accidents at work are not currently receiving effective
remedies under systems provided by Circular RS0711/ W751. This is evident in government
documents obtained by SERC between September 2009 and August 2010 (supporting documents
seven to nine), MoL press statements (supporting documents ten and eleven) and officials’
general public comments and news reports (supporting documents twelve to seventeen).
However, the RTG seems to have decided on the wrong approach to address these challenges.
The RTG seems to have decided that setting up a separate work accident compensation fund or
setting up a private insurance scheme to provide insurance to these migrants is the solution to
these challenges. Such scheme would be managed by private companies with adjudication on
compensation conducted by WCF officials. Neither SERC nor representatives of migrants from
Myanmar were consulted on these plans by the SSO or other agencies of the RTG.

SERC considers that plans to set up a separate and privately managed fund or insurance scheme
to provide accident, sickness, disability and death compensation benefits to migrant work accident
victims from Myanmar (and their dependents) is a worrisome development because it appears the
RTG is abandoning the principle of providing non-discriminatory access to the WCF. There are
allegations, which have not yet been confirmed given the opaque and non-participatory nature of
the decision making process surrounding these plans, that suggest benefits to be received by
migrants under such schemes may be less than those received by Thai work accident victims
through the WCF. SERC consider such planned measures are illegal under the Workmen’s
Compensation Act 1994, which provides access to the WCF to all “workers” irrespective of
nationality.

SERC also considers that such plans, if implemented, would signal that the RTG has decided not
to comply with its international labour rights obligations as a signatory to C-19 (in particular
Article one) because such measures would result in systematic discrimination against migrants
from Myanmar who are not provided with “equality of treatment” with that of Thai workers, as
required under this Convention. That such private insurance plans would apply only to non-Thai
persons clearly indicate that they would be discriminatory measures in effect, whatever the
benefits migrants from Myanmar may receive. SERC also notes such discriminatory treatment also
braches Thailand’s 2007 Constitution which under Article 30 guarantees non-discrimination.

For all these reasons, SERC is now for a second time 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 leaders have met on several occasions with three Ministers of Labour as
well as senior MoL officials to request their action to remedy the problem of migrant accident
victims rarely receiving work accident compensation. Most recently, we petitioned the Minister of
Labour on 12th July 2010 (supporting documents ten and eighteen). The promises of action by the
Ministers and senior officials made to SERC at these meetings have not been forthcoming.

Back in 2007, SERC first petitioned ILO officials in Bangkok to initiate a ‘good offices’ approach
with the MoL, but because of MoL resistance this process was ultimately unproductive. Two sets
of recommendations from the National Human Rights Commission to the MoL on this issue have
also been ignored. In late 2009 the United Nations Special Rapporteur on the Human Rights of
Migrants officially corresponded with the RTG on this WCF issue but he received no response. In
addition, despite SERC’s Comment to the ILO’s CEACR in 2009 and CEACR’s strongly worded
report in February 2010, the MoL continues to press ahead with discriminatory plans to provide
compensation to migrant work accident victims from Myanmar without consultation with or regard
for the suggestions from SERC, civil society groups or representatives of the migrants concerned.

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 by a group of migrants from Myanmar. However, as noted in our previous Comment, 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. This case
was then submitted with the same plaintiffs as an Administrative case to the Central Labour Court
in December 2008. The court accepted jurisdiction in May 2009 but then the case was rejected by
the Region 5 Labour Court in September 2009. A petition was filed with the Supreme Court in
October 2009 to appeal Region 5 Labour Court’s decision and the case remains 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 remains pending, following the Labour
Court’s rejection of her claim. Recently, two additional cases of migrants (Nai Khek and Sai Htun)
were also appealed to the Supreme Court and remain pending after all domestic courts rejected
their appeals for compensation from the WCF. Finally, three workers from Myanmar petitioned
the Central Administrative Court to revoke Circular RS0711/W751 in January 2010 but the court
has not issued a response to this submission. In all of these pending court cases, the report of the
CEACR to the 99th session of the ILC on the RTG’s compliance with C19 and its discussion of
RTG’s international labour obligations was submitted as evidence by the plaintiffs.

A decision on the legality of RS0711/W751 issued by any Supreme Court rulings in the future is
not binding, as Thailand’s Courts of Justice (as opposed to Administrative Courts) have no power
to revoke administrative acts of the MoL. Although one case is pending in the Administrative
Court, SERC believes it is unlikely the court will provide any assistance based on our observations
of the failed legal challenges over the past 4 years. Circular RS0711/W751 has therefore become
unreviewable in Thailand’s courts and SERC contends all domestic legal remedies available in this
matter have been exhausted.

In an era of global migration, international human rights and labour standards should be enforced
in 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 RTG
to permit migrant access to the WCF should be viewed as a challenge to the principle that all
governments have an international obligation to ensure protection of the labour rights of migrants.
SERC holds that massive irregular outflows of workers from Myanmar, prompted by the continued
failure of Myanmar’s Government to respect human rights and move towards an economic system
more appropriate to developing an economically prosperous and just nation, should not provide
an excuse for Thailand to exploit migrants from Myanmar in search of a better life.

SERC sincerely hopes the ILO can assist to persuade the RTG to remove discriminatory obstacles
faced by migrants seeking access to decent work in Thailand. On behalf of SERC, I therefore
request that you kindly forward this Comment and attached supporting documents to the ILO’s
CEACR for review at their earliest possibly opportunity. I sincerely hope that CEACR will avail
itself of this detailed submission to examine again the discrimination in Thailand suffered by
migrants from Myanmar under C-19. By considering this issue, SERC hopes the ILO will also be
able to consider root causes of the mass migration of Myanmar’s people and the continued
failings of the Myanmar authorities to respect core labour standards, the result of which is the
growing and irregular migration flows from Myanmar that my country continues to face.
I look forward to CEACR’s response on this issue in due course.

Yours Respectfully,
Mr. Sawit Keawan
General Secretary: State Enterprise Workers Relations Confederation


Attachments:
1. ‘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),’ letter submitted by SERC to the CEACR on 5th June 2009 in Geneva
2. ‘Report of the Committee of Experts on the Application of Conventions and Recommendations
to the 99th Session of the International Labour Conference – Thailand: Equality of Treatment
(Accident Compensation) Convention, 1925 (No. 19),’ issued in February 2010
3. ‘Migrant Workers From Myanmar Denied WCF Access’ (HRDF Campaign Fact Sheet,
September 2010)
4. ‘Select Case Studies of Myanmar Migrant Work Accident Victims in Thailand’ (HRDF Report,
September 2010)
5. SSO Circular RS0711/W751 (issued 25th Oct. 2001) re: Providing Protection for Migrant
Workers Who Incur Work Related Accidents/Illnesses (Original Thai version with unofficial
English translation by HRDF)
6. ‘Extension of Time Period for Nationality Verification and Granting an Amnesty to Remain in
the Kingdom of Thailand to Alien Workers/Creating an Additional Committee Member for the
Alien Workers Management Committee,’ Cabinet Agenda Item 12 Resolution issued on 19th
January 2010 (Original Thai version with unofficial English translation by HRDF)
7. ‘Report of the Meeting of the Subcommittee for Management and Processing of Alien Workers
According to Systems Meeting Number 1/2553 on Wednesday 2nd June 2010’ (Original Thai
version with unofficial English translation by HRDF)
8. ‘Record of Information Ref. Ror Ngor 0611/1316 re: Protection of Alien Workers Who
Entered the Country Illegally,’ issued by the Social Security Office’s Workmen’s
Compensation Fund on 15th September 2009 (Original Thai version with unofficial English
translation by HRDF)
9. ‘Record of Information Ref. Ror Ngor 0611/11749 re: Protection of Alien Workers Who
Entered the Country Illegally,’ issued by the Social Security Office’s Workmen’s
Compensation Fund on 26th August 2009 (Original Thai version with unofficial English
translation by HRDF)
10. ‘State Enterprises Workers’ Relations Confederation and its networks pave a way for migrant
workers to access to compensation fund,’ Ministry of Labour Press Release on 12th July 2010
11. ‘MOL subcommittee on alien workers finds a resolution to protect suffering alien workers,’
Ministry of Labour Press Release 8th April 2010
12. ‘Insurance Aims for Alien Workers,’ Than Online News issued on 28th July 2010 (Original
Thai version with unofficial English translation by HRDF)
13. ‘Alien Workers Insurance Doesn’t Appear,’ Post Today issued on 5th July 2010 (Original Thai
version with unofficial English translation by HRDF)
14. ‘Insurance Companies Push Away Idea of Insuring Alien Workers,’ Than Hun issued on 4th
June 2010 (Original Thai version with unofficial English translation by HRDF)
15. ‘Aliens Should Purchase Life Insurance Instead of Entering Social Security Systems,’
Matichon Online issued on 2nd June 2010 (Original Thai version with unofficial English
translation by HRDF)
16. ‘Ministry of Labour Prepare to Allow Alien Access to Worker Accident Compensation
Systems in Form of Life Insurance,’ Thai Official News Agency issued on 2nd June 2010
(Original Thai version with unofficial English translation by HRDF)
17. ‘Preparing to Set Up Compensation Fund to Protect Over 1 Million Alien Workers,’ MCOT
issued on 2nd June 2010 (Original Thai version with unofficial English translation by HRDF)
18. ‘Migrant Workers Must Urgently Be Granted Access to Work Accident Compensation,’ Press
Statement by SERC on 12th July 2010