Cablegate: Thai Unions, Labor Experts Critique Draft Labor

This record is a partial extract of the original cable. The full text of the original cable is not available.

120143Z Oct 05

UNCLAS SECTION 01 OF 03 BANGKOK 006440

SIPDIS

SENSITIVE

PASS TO USTR - AARON ROSENBERG
STATE FOR DRL/IL AND EAP/MLS
DOL FOR ILAB - JIM SHEA

E.O. 12958: N/A
TAGS: ELAB ETRD PHUM SOCI TH
SUBJECT: THAI UNIONS, LABOR EXPERTS CRITIQUE DRAFT LABOR
RELATIONS ACT

1. (U) Summary: At an October 5 NGO-sponsored roundtable,
12 Thai labor leaders called Thailand's draft revision of
the 1975 Labor Relations Act (LRA) a "step backwards" for
labor rights in this country. U.S. labor advisers and ILO
representatives presented a more balanced view of the LRA
draft and urged Thai unions to work constructively on
improving it rather than opposing it in full. Both Thai and
independent experts agreed, however, that enforcement of
existing labor law is slipshod at best, and that the Thai
government has largely ignored labor groups' opinions on how
to improve the LRA. ILO experts and academics believe that
employer exploitation of migrant workers, as well as
laborers working for company contractors or sub-contractors,
has a significantly negative impact on labor conditions in
Thailand. End Summary.

2. (U) At an October 5 roundtable organized by the U.S.-
based Solidarity Center (ACILS), Thai labor leaders roundly
criticized the draft Labor Relations Act (LRA) now pending
approval by the Cabinet of the Royal Thai Government (RTG)
before it is to be taken up for consideration by Thailand's
parliament. The new LRA is the long-awaited successor to
the original LRA of 1975. Having stalled in Cabinet for
several years for a variety of reasons, efforts to pass the
Act have acquired new urgency as the RTG attempts to
demonstrate its commitment to improving labor standards
under a prospective U.S.-Thai Free Trade Agreement.

3. (U) In advance of the roundtable, ACILS advisers and top
Thai labor lawyers circulated two separate analyses of the
LRA draft which compared its provisions to those of the 1975
Act. Leaving aside the issue of enforcement, which labor
leaders consider to be lax in Thailand, the analyses
generally agreed on areas where the new LRA represented an
improvement over existing legislation, areas where it was
viewed as falling short, and areas which remained unchanged.
These can be summarized as follows:

KEY LRA IMPROVEMENTS COMPARED TO 1975 ACT
-----------------------------------------

4. (U) The draft LRA:

-- Prohibits employers from firing employees for trying to
organize a trade union; prohibits employers from locking out
employees making demands on behalf of a union; and prohibits
other arbitrary or unfair acts against union members without
just case (Section 148(1)(5)). (Comment: This closes a
major loophole in current law, which allows employers to
terminate workers without cause for "promoting a union"
before the union has been registered.)

-- Allows a union with a membership of over 50 percent of
the employer's workforce to submit demands on behalf of all
employees, even if multiple trade unions exist (Section 30).

-- Prevents an employer or employee from presenting
additional evidence to a Labor Court proceeding unless it
has first been presented to the Labor Relations Committee
(Article 152).

KEY LRA SHORTFALLS COMPARED TO 1975 ACT
---------------------------------------

5. (U) The draft LRA:

-- Expands the number of business sectors prohibited from
engaging in strikes to include: commercial banking, finance
and security businesses, private schools and cooperatives.

-- Prohibits outsiders from supporting bargaining activities
of employees ('outsiders' being anyone not an employer,
employee, member of an employee committee, or legal
adviser).

-- Allows employees to be a member of only one trade union
per workplace, and prohibits them from joining or creating
unions across different professions.

-- Requires employers and employees to submit unsettled
labor disputes to an appointed arbitrator before declaration
of a strike (Article 41).

-- Requires trade unions to provide a list of members to a
registrar once a year, violating union confidentiality.

KEY EXISTING PROBLEMS NOT ADDRESSED BY LRA
------------------------------------------

6. (U) The draft LRA does not address the following issues
identified as shortcomings of 1975 Act:

-- Civil servants remain are prohibited from organizing
trade unions.

-- Migrant non-Thai laborers and child laborers (age 15-19)
are not allowed to organize unions or serve as union
officers, despite comprising a significant part of the Thai
workforce.
-- The Labor Law definition of employees allowed to organize
unions excludes household workers, freelance workers and
taxi drivers.

-- The Minister of Labor has considerable power to appoint
members of employees' committees and labor relations
promotion committees without transparent criteria.

-- The Minister of Labor has considerable power to prohibit
strikes in any workplace (Article 63) by claiming potential
economic damage or disturbance to the nation's peace.

THAI LABOR LEADERS' STAND: "NO LRA, NO FTA"
-------------------------------------------

7. (U) While ACILS facilitators at the roundtable tried to
generate constructive debate on required changes to improve
the LRA, Thai labor union representatives declared they
would rather keep the 1975 Act in place than accept a new,
flawed LRA which they believe is being rushed to completion
as a pre-condition to a U.S.-Thai FTA. "We would rather
scrap the draft LRA and start over from scratch," said the
head of the Thai Carbon Black Workers' Union, who argued
that the proposed LRA would give legal sanction to employer
interference in workers' rights to representation and their
right to strike. Somsak Kosaisook, head of the 200,000
member State Enterprise Relations Confederation (SERC),
argued that the administration of Prime Minister Thaksin
Shinawatra has refused to engage Thai labor unions on the
LRA's provisions and is not sympathetic to labor's concerns
in general.

8. (SBU) Somsak noted that Ministry of Labor (MOL) officials
refused to discuss the draft LRA at a September 28 dialogue
between the MOL and Thailand's seven largest labor unions to
discuss labor conditions. He said that a forthcoming
meeting with the MOL to discuss enforcement of minimum wage
law was also unlikely to include the LRA as a discussion
topic. He further criticized the prospective FTA as an
agreement that would only benefit U.S. corporations and the
business interests of the Thai leadership, which he branded
as "promoters of globalization and violators of human
rights."

9. (SBU) A representative from the International Labor
Organization's (ILO) regional Bangkok office urged the Thai
labor leaders to continue to lobby their government for
improvements to the LRA rather than opposing its
consideration outright. "Your strategy is self-defeating,"
he said, "and you need to get engaged in a consultative
dialogue with government and employers to suggest changes."
"You've waited 30 years to reach this point," he added, "and
if you stop the process entirely, you may have to wait
another 30 years." The ILO representative said that while
he understood the Thai labor movement remained fractured and
weak, it had a responsibility to raise labor complaints in
ILO venues, such as the Geneva-based ILO Committee on
Freedom of Association, and to file an annual statement with
the ILO on the status of collective bargaining and freedom
of association in their country.

Legal Experts Cite Failure of Labor Enforcement
--------------------------------------------- --

10. (U) While disagreeing with the absolutist stance of the
Thai unions, ILO and academic experts privately concede that
labor leaders have reason to be skeptical about the RTG's
willingness to take their views into consideration. An
alternate LRA draft, proposed by unions and labor NGO's in
response to the government's draft, has been largely
ignored. In 2003-04, a series of public hearings was held
on the LRA in eight different provinces, organized by the
Labor Committee of Parliament with the participation of key
labor leaders and MOL officials. The meetings generated
much publicity and verbal commitments to cooperate, but no
visible progress in amending the LRA draft.

11. (SBU) In separate meetings in September prior to the LRA
roundtable, ILO experts told Laboff that the treatment of
migrant laborers, especially Burmese migrants, was one of
the key labor issues in Thailand not addressed by the LRA.
There are between 1 and 2 million migrant workers in
Thailand, 80 percent of whom are Burmese, working largely in
the fishing, agricultural, textiles and construction
industries. Under current law, legal non-Thai migrant
workers are allowed to join unions but are not allowed to
hold union office nor organize their own unions - a
situation that remains unaddressed by the new LRA draft.
Thai labor lawyers note that the Federation of Trade Unions
of Burma (FTUB) has been struggling to organize Burmese
migrants by having them join Thai unions, but is
encountering opposition from those unions, as well as from
employers, due to the language barrier as well as a
perceived difference in interests.

12. (SBU) In another meeting September 20, the Director of
the National Labor Management Center, Prof. Lae
Dilokvithayarat, told Laboff that the largest problem with
the Thai LRA is the failure to enforce its provisions with
companies that outsource production to less-supervised
contractor or sub-contractor companies. While the Ministry
of Labor is committed to treating all employers as the same,
there is evidence that production by major firms that is
contracted out is subject to far less monitoring. Laboff
noted in a September 17-18 visit to the border province of
Mae Sot that the contractor and migrant problems are often
intertwined, as hundreds of small textile factories employ
Burmese workers at wages far below the mandatory minimum of
142 baht per day (USD 3.50) making clothes for larger firms
in Bangkok which then apply garment labels before sale in
local stores or, in some cases, for export shipment. These
provinces, the ILO and legal experts agree, are poorly
monitored due to staffing and funding constraints in the
Labor Ministry.

13. (SBU) Prof. Lae also said that the LRA's improved
protection for union promoters from arbitrary termination
would not be fulfilled until the Thai Labor Court reduced
the time it took to render decisions and reinstate aggrieved
workers. Currently, a worker who files a case of wrongful
termination can expect an initial decision from the Labor
Relations Committee, on whether it should forward the case
to the Labor Court, in about three months. Thereafter, the
Labor Court can take from half a year to a full year to
render its decision, which can then be appealed by the
employer to a higher court before reinstatement is
necessary. All told, it is not unusual for court cases to
last well over a year if employers seek to pursue all legal
avenues. In addition, the now-unemployed worker must bear
the cost of his/her transportation to Bangkok to attend
court hearings, assuming he/she has found and can afford a
lawyer to take on the case. In the meantime, said Prof.
Lae, the worker is constantly urged by court officials and
employers to accept a compensation package and to drop the
case, which happens in a large percentage of situations.

14. (SBU) Comment: Laboff stressed in all private meetings
and at the roundtable that the U.S. was not interested in
dictating the provisions of Thai labor law, and that the key
requirement for FTA labor chapters was to ensure that our
trading partners enforced their own laws. Each country is
given the flexibility to implement those laws in the manner
best suited to its capabilities. Laboff encouraged the Thai
labor leaders to continue efforts to engage the RTG over LRA
provisions, and to continue their dialogue with the ILO and
with NGOs such as ACILS. Labor experts agree that despite
enforcement capacity problems, addressing the migrant and
contractor labor issues in new legislation would be a
significant step toward improving labor standards in
Thailand.

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