a. Freedom of Association and the Right to Collective Bargaining
The constitution provides that a person shall enjoy the liberty to unite and form an association, cooperative, union, organization, community, or any other group. Labor laws guarantee the rights of workers in private-sector and state-owned enterprises (SOE) to organize trade unions and engage in collective bargaining. Civil servants have the liberty to assemble as a group, provided that such assembly does not affect the efficiency of national administration and continuity of public services and does not have a political objective.
Among wage and salary workers, 3.5 percent are unionized and only 34 out of 77 provinces have labor unions.
The law allows private-sector workers to form and join trade unions of their choosing without prior authorization, to bargain collectively, and to conduct legal strikes, although these rights come with restrictions. For example, workers have the rights to strike legally if they have notified the authorities 24 hours in advance, if a demonstration is not on public roads, and if it does not violate any laws.
When bargaining collectively, workers can submit a set of demands through the union if at least one-fifth of the workforce are members of that union; or at workplaces without a union, if they have signatures from at least 15 percent of the workforce. Under the law, only workers with the same employer or in the same industry may form a union. Contract workers, even if working in the same factory and doing the same job as full-time workers, cannot join the union because they are classified as belonging to the service industry while full-time workers come under the “manufacturing industry.” Nevertheless, the law makes contract workers eligible for the same benefits as those enjoyed by union members. The inability for contract workers and full-time workers to join the same union could diminish the benefits of bargaining collectively as a larger group. In addition, short-term contract workers are less likely to join unions for fear of losing their jobs. Labor advocates claim that many companies hire contract workers to undermine unionization efforts. A survey of the auto-parts and electronics industries found that more than 45 percent of the workforce consists of contract workers, and about half of them have short-term contracts.
The law allows one union per SOE. Banks, trains, airlines, airports, marine ports, and postal services are among those industries owned by SOEs. If an SOE union’s membership falls below 25 percent of the eligible workforce, regulations require dissolution of the union.
The law restricts formal links between unions of SOEs and their private-sector counterparts because they are governed by two separate laws.
The law allows employees at workplaces without a union to submit collective demands if at least 15 percent of employees are listed as supporting that demand. Employees in private enterprises with more than 50 workers may establish “employee committees” to represent workers’ financial interests and to negotiate with employers; employees may also form “welfare committees” to represent workers’ non-financial interests. Employee and welfare committees may offer employers suggestions but are barred from submitting labor demands or going on strike. The law prohibits employers from taking adverse employment actions against workers for their participation in these committees and from obstructing the work of the committees. Union leaders often join employee and welfare committees to avail themselves of this legal protection. Within 11,600 enterprises which have more than 50 workers in the country, there are 1,689 labor unions, 14,888 welfare committees, and 739 employee committees. NGOs report that welfare committees are uncommon in the border regions where the majority of workers are migrants.
The government may block private-sector strikes with national security implications or with negative repercussions on the population at large, but it did not invoke this provision during the year.
Strikes and lockouts are prohibited at SOEs and penalties for violations include imprisonment, fines, or both.
In March 2018 the Supreme Court ordered seven union leaders of the State Railway of Thailand (SRT) to pay a fine of THB 15 million ($500,000) plus accrued interest for leading an illegal strike after a train derailment in 2009 despite the finding of the International Labor Organization (ILO) that union leaders’ actions were in line with international standards on the role of unions in occupational safety and health (OSH). To execute the court order, the SRT in November 2018 started to garnish the wages and seize the assets of union leaders. In addition, several SRT union leaders were charged with corruption and face imprisonment of up to 10 years and fines. In October the NACC filed criminal corruption charges against the seven union leaders. If convicted, the leaders could potentially face up to five years in prison.
Noncitizen migrant workers, whether registered or undocumented, do not have the right to form unions or serve as union officials. Migrants can join unions organized and led by Thai citizens. Migrant-worker participation in unions is low due to language barriers, weak understanding of legal rights, frequent changes in employment status, membership fees, restrictive union regulations, and segregation of citizen workers from migrant workers by industry and by zones (particularly in border and coastal areas). In practice, unregistered associations, community-based organizations, and religious groups often represent the interests of migrant workers. In workplaces where the majority of workers are migrants, migrant workers are sometimes elected to the welfare committees and employee committees. Migrant workers are allowed to make collective demands if they obtain the names and signatures of at least 15 percent of employees. NGOs reported few cases, however, where migrant workers’ collective demands were successful in effecting change, particularly along the border areas.
The law does not protect union members against antiunion actions by employers until their union is registered. To register a union, at least 10 workers must submit their names to the Department of Labor Protection and Welfare (DLPW). The verification process of vetting the names and employment status with the employer exposes the workers to potential retaliation before registration is complete. Moreover, the law requires that union officials be full-time employees of the company or SOE and prohibits permanent union staff.
The law protects employees and union members from criminal or civil liability for participating in negotiations with employers, initiating a strike, organizing a rally, or explaining labor disputes to the public. The law does not protect employees and union members from criminal charges for reputational damage, however, and NGOs report that reputational damage charges are sometimes used to intimidate union members and employees. The law also does not prohibit lawsuits intended to censor, intimidate, or silence critics through costly legal defense. In March the government amended the Criminal Procedure Code to protect defendants in frivolous libel cases from prosecution. Under this amended law, a court may dismiss a defamation lawsuit if it is considered dishonest. Human rights defenders hope this amendment will help minimize strategic litigation against workers and provide protection for honest whistleblowers. In June human rights lawyers assisted five migrant workers in filing a retaliatory lawsuit claiming compensation for lost wages, reputational damage, and legal fees after the courts dismissed the employer’s lawsuit against the migrant workers on charges of illegal entry, illegal stay, and theft.
The law prohibits termination of employment of legal strikers but permits employers to hire workers or use subcontract workers to replace strikers. The legal requirement to call a general meeting of trade union members and obtain strike approval by at least 50 percent of union members constrained strike action, given that many factories use shift workers, making it difficult to make a quorum.
Labor-law enforcement was inconsistent and in some instances ineffective in protecting workers who participated in union activities. Employers may dismiss workers for any reason except participation in union activities, provided the employer pays severance. There were reports of workers dismissed for engaging in union activities, both before and after registration; in some cases, labor courts ordered workers reinstated. Labor courts or the Labor Relations Committee may make determinations on complaints of unfair dismissals or labor practices and may require compensation or reinstatement of workers or union leaders with wages and benefits equal to those received prior to dismissal. The Labor Relations Committee consists of representatives of employers, government, and workers groups, and there are associate labor court judges who represent workers and employers. There were reports employers attempted to negotiate terms of reinstatement after orders were issued, offering severance packages for voluntary resignation, denying reinstated union leaders access to work, or demoting workers to jobs with lower wages and benefits.
In some cases, judges awarded compensation in lieu of reinstatement when employers or employees claimed they could not work together peacefully; however, authorities rarely applied penalties for conviction of labor violations, which include imprisonment, a fine, or both. Penalties were insufficient to deter violations. Labor inspection increasingly focused on high-risk workplaces and the use of intelligence from civil society partners. Labor inspections, however, remained infrequent and the number of labor inspectors and resources were inadequate given the size of the workforce. Trade-union leaders suggested that inspectors should move beyond perfunctory document reviews toward more proactive inspections. Rights advocates reported that provincial-level labor inspectors often attempted to mediate cases, even when labor rights violations requiring penalties had been found.
There were reports employers used various techniques to weaken labor-union association and collective-bargaining efforts. These included replacing striking workers with subcontractors, which the law permits as long as strikers continue to receive wages; delaying negotiations by failing to show up at Labor Relations Committee meetings or sending non-decision makers to negotiate; threatening union leaders and striking workers; pressuring union leaders and striking workers to resign; dismissing union leaders, ostensibly for business reasons, violation of company rules, or negative attitudes toward the company; prohibiting workers from demonstrating in work zones; inciting violence, then using a court order to clamp down on protests; transferring union leaders to other branches, thus making them ineligible to participate in employee or welfare committees; transferring union leaders and striking workers to different, less desirable positions or stripping them of management authority; and supporting the registration of competing unions to circumvent established, uncooperative unions.
Employers sometimes filed lawsuits against union leaders and strikers for trespass, defamation, and vandalism. For instance, in 2015 the central labor court ordered four union leaders of Thai Airways to pay claims of damages in the amount of THB 326 million ($10,900,000) for causing reputational damage; the case is now pending a Supreme Court decision. The ILO expressed concern that the court decision ran counter to the principles of freedom of association, and that the excessive damages awarded were likely to have an intimidating effect on the Thai Airways Union and inhibit their legitimate union activities. Human rights defenders said lawsuits like these and threats to terminate the employment of union leaders had a chilling effect on freedoms of expression and association (also see section 7.b.).
NGOs and labor advocates reported incidents where their staff were followed or threatened by employers after they had been seen advocating for labor rights.