Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19) - Thailand (RATIFICATION: 1968)

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Article 1 of the Convention. Equality of treatment in case of employment accident. In its previous comments, the Committee requested the Government to provide information on the measures taken to ensure access to benefits from the Workmen’s Compensation Fund for foreign workers. The Committee notes the Government’s indication that the Workmen’s Compensation Fund directly provides benefits to undocumented workers regardless of their nationality and legal status should they suffer employment injury and their employers are obligated to pay contributions. The Committee further notes the measures indicated by the Government to address the situation of undocumented migrant workers, including measures to facilitate the procedure of obtaining the relevant identity and working documents and informing by employers on the status of employment of migrant workers. The Committee further notes with satisfaction the adoption of the Workmen’s Compensation Act No. 2 on 9 December 2018 (WCA 2018) and the Notification of the Ministry of Labour on 20 March 2019, which require the registration of employees engaged in the agriculture, fishery, forestry and livestock sectors within the Workmen’s Compensation Fund. The Government points out that the expansion of coverage of the WCA 2018 has resulted in a significant increase in the number of employees covered by the Workmen’s Compensation Scheme.

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The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

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Article 1 of the Convention. Equality of treatment in case of employment accidents. The Committee takes note of the detailed information supplied in the report and commends the Government’s commitment to take action with a view to improving the situation of the hundreds of thousands of documented and undocumented migrants working in Thailand. It recalls that, while documented workers are registered and protected by the Social Security Fund (SSF) on the same conditions as national workers, undocumented foreign workers with no proof of national identity are not entitled to benefits under the social security system. These persons are, however, eligible to receive work-related compensation at the same rate as national workers under the Workmen’s Compensation Fund (WCF) in accordance with section 50 of the Workmen’s Compensation Act allowing the Social Security Office (SSO) to order the employer to pay compensation. Employers are also responsible for paying the health insurance contributions for undocumented workers (1,150 Thailand Baht (THB)) for workers awaiting registration with the SSF and THB2,800 for those not covered by the SSF). With respect to improving the social security coverage of migrant workers, the Government reports that a Working Committee chaired by the Deputy Secretary of the SSO responsible for studying the current limitations for accessing the social security benefits recommended that the SSO should make it easier for migrant workers to access benefits from the WCF in accordance with the terms and conditions of employment and residence status of migrant workers. The SSO, in turn, has conducted research on the development of a social insurance system for inbound and outbound migrant workers and the technical report is currently with the Committee of Research Report Verification.

The Committee welcomes the efforts undertaken by the SSO to facilitate access of migrant workers to benefits from the WCF and to explore the possibility of developing a social insurance scheme for migrant workers. The Committee requests the Government to provide information on the decisions taken by the SSO, as well as on the practical effects of these measures on compliance by employers with their obligation to compensate their workers, whether documented or undocumented, in case of occupational injuries. Also, recalling that the steps taken with a view to verifying the nationality of undocumented migrants came to an end in August 2014, the Committee requests the Government to communicate, with its next report, a thorough assessment of the situation of undocumented migrants who continue to reside and work in Thailand.

With respect to the situation of migrant domestic workers, seasonal workers and workers in agriculture and fisheries, who, according to the report, are exempt from coverage by both the social security scheme and the WCF due to limitation of collection of contributions, the Committee recalls that these categories of workers are fully covered by the Convention and therefore entitled to equal treatment with national workers in respect of employment injuries. It therefore requests the Government to take steps to comply with the Convention and further requests the Government to provide in its next report more detailed information about their situation both in law and in practice, including disaggregated data on the number of documented and undocumented migrant workers in the above categories.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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Article 1 of the Convention. Equality of treatment in case of employment accidents. The Committee takes note of the detailed information supplied in the report and commends the Government’s commitment to take action with a view to improving the situation of the hundreds of thousands of documented and undocumented migrants working in Thailand. It recalls that, while documented workers are registered and protected by the Social Security Fund (SSF) on the same conditions as national workers, undocumented foreign workers with no proof of national identity are not entitled to benefits under the social security system. These persons are, however, eligible to receive work-related compensation at the same rate as national workers under the Workmen’s Compensation Fund (WCF) in accordance with section 50 of the Workmen’s Compensation Act allowing the Social Security Office (SSO) to order the employer to pay compensation. Employers are also responsible for paying the health insurance contributions for undocumented workers (1,150 Thailand Baht (THB)) for workers awaiting registration with the SSF and THB2,800 for those not covered by the SSF). With respect to improving the social security coverage of migrant workers, the Government reports that a Working Committee chaired by the Deputy Secretary of the SSO responsible for studying the current limitations for accessing the social security benefits recommended that the SSO should make it easier for migrant workers to access benefits from the WCF in accordance with the terms and conditions of employment and residence status of migrant workers. The SSO, in turn, has conducted research on the development of a social insurance system for inbound and outbound migrant workers and the technical report is currently with the Committee of Research Report Verification.

The Committee welcomes the efforts undertaken by the SSO to facilitate access of migrant workers to benefits from the WCF and to explore the possibility of developing a social insurance scheme for migrant workers. The Committee requests the Government to provide information on the decisions taken by the SSO, as well as on the practical effects of these measures on compliance by employers with their obligation to compensate their workers, whether documented or undocumented, in case of occupational injuries. Also, recalling that the steps taken with a view to verifying the nationality of undocumented migrants came to an end in August 2014, the Committee requests the Government to communicate, with its next report, a thorough assessment of the situation of undocumented migrants who continue to reside and work in Thailand.

With respect to the situation of migrant domestic workers, seasonal workers and workers in agriculture and fisheries, who, according to the report, are exempt from coverage by both the social security scheme and the WCF due to limitation of collection of contributions, the Committee recalls that these categories of workers are fully covered by the Convention and therefore entitled to equal treatment with national workers in respect of employment injuries. It therefore requests the Government to take steps to comply with the Convention and further requests the Government to provide in its next report more detailed information about their situation both in law and in practice, including disaggregated data on the number of documented and undocumented migrant workers in the above categories.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

Repetition

The Committee notes that in March 2012, the Government supplied information in reply to the issues raised by the State Enterprise Workers’ Relations Confederation (SERC) in 2011 and that, in April 2012, a delegation composed of officials of the Social Security Office of Thailand was received at the ILO with a view to sharing knowledge and discussing questions concerning the implementation of the Convention. The Committee further notes that, on 18 September 2012, the SERC supplied updated information on the application of the Convention in Thailand which was transmitted to the Government on 25 September 2012. The Committee notes from this information that the situation in law has changed due to the replacement of the Social Security Office (SSO) Circular No. RS.0711/W751 of 2001 by SSO Circular No. RN.0607/987 of 2012 following the adoption of a Cabinet resolution of 13 February 2012 on allowing migrant workers in a regular situation to access social security. In April 2012, the Office of Foreign Worker Administration reported that 642,865 workers from Myanmar, Cambodia and Lao People’s Democratic Republic had completed the full nationality verification process and that another 95,929 had come in legally through the MOU import process. Furthermore, on 31 May 2012, the Illegal Alien Workers Management Committee (IAWMC) set up a Committee headed by the Permanent Secretary of the Ministry of Labour to investigate and make recommendations on the issues of migrant worker access to social security and work accident compensation benefits. With regard to the situation in practice, the SERC reports that the new circular does not change the previously existing situation. The official statistics on the number of migrant workers who have completed the nationality verification process continue to be conflicting and unreliable. According to the SERC, an estimated 1–2 million migrant workers from Myanmar remain undocumented and are not covered by employment injury insurance, while the Government continues to press ahead with plans to provide alternative compensation schemes to migrant workers distinct from those existing for Thai nationals without consultation with the interested parties.

In view of the complexity of the situation and the developments which have taken place since it was last examined in its lengthy 2011 observation, the Committee urges the Government to provide detailed explanations on all issues raised in its previous and present comments. The Government is requested to supply a full report containing information on how the new legal provisions have been implemented, the recommendations made by the Committee set up by the IAWMC, and statistics disaggregated by gender and age, on the number of migrant workers who have completed the nationality verification process, those still undergoing nationality verification, and on the number of migrant workers who became affiliated to the Workmen’s Compensation Fund as a result.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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The Committee notes that the Government’s report in response to its 2011 observation has not been received. It notes however that, in March 2012, the Government supplied information in reply to the issues raised by the State Enterprise Workers’ Relations Confederation (SERC) in 2011 and that, in April 2012, a delegation composed of officials of the Social Security Office of Thailand was received at the ILO with a view to sharing knowledge and discussing questions concerning the implementation of the Convention. The Committee further notes that, on 18 September 2012, the SERC supplied updated information on the application of the Convention in Thailand which was transmitted to the Government on 25 September 2012. The Committee notes from this information that the situation in law has changed due to the replacement of the Social Security Office (SSO) Circular No. RS.0711/W751 of 2001 by SSO Circular No. RN.0607/987 of 2012 following the adoption of a Cabinet resolution of 13 February 2012 on allowing migrant workers in a regular situation to access social security. In April 2012, the Office of Foreign Worker Administration reported that 642,865 workers from Myanmar, Cambodia and Lao People’s Democratic Republic had completed the full nationality verification process and that another 95,929 had come in legally through the MOU import process. Furthermore, on 31 May 2012, the Illegal Alien Workers Management Committee (IAWMC) set up a Committee headed by the Permanent Secretary of the Ministry of Labour to investigate and make recommendations on the issues of migrant worker access to social security and work accident compensation benefits. With regard to the situation in practice, the SERC reports that the new circular does not change the previously existing situation. The official statistics on the number of migrant workers who have completed the nationality verification process continue to be conflicting and unreliable. According to the SERC, an estimated 1–2 million migrant workers from Myanmar remain undocumented and are not covered by employment injury insurance, while the Government continues to press ahead with plans to provide alternative compensation schemes to migrant workers distinct from those existing for Thai nationals without consultation with the interested parties.

In view of the complexity of the situation and the developments which have taken place since it was last examined in its lengthy 2011 observation, the Committee urges the Government to provide detailed explanations on all issues raised in its previous and present comments. The Government is requested to supply a full report in 2013 containing information on how the new legal provisions have been implemented, the recommendations made by the Committee set up by the IAWMC, and statistics disaggregated by gender and age, on the number of migrant workers who have completed the nationality verification process, those still undergoing nationality verification, and on the number of migrant workers who became affiliated to the Workmen’s Compensation Fund as a result.

[The Government is asked to reply in detail to the present comments in 2013.]

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In its previous observation, the Committee expressed deep concern over the situation of more than 2 million migrants, mainly from Myanmar, working in Thailand. Although the right to equal treatment of foreign workers in case of a work-related accident is recognized by the Workmen’s Compensation Act B.E. 2537 (WCA) of 1994, additional conditions for the implementation of this right, established by the Social Security Office (SSO) in circular No. RS.0711/W751 of 2001, have prevented legally employed migrants from affiliating to the Workmen’s Compensation Fund (WCF), pending completion of a complex and lengthy nationality verification procedure. Calling attention to the dire humanitarian situation of these workers, the Committee requested the Government to take positive and urgent measures to review the policy and legal framework concerning social security coverage and protection of migrant workers in case of occupational accidents and to instruct the SSO to lift restrictive conditions and facilitate access of migrant workers to the WCF irrespective of their nationality.

The Government states in its report of February 2011 that migrant workers who come to work in Thailand holding a passport and a work permit are fully covered by the WCA on an equal footing with Thai nationals and without any discrimination. If they suffer work-related injuries or sickness, these workers are entitled, in accordance with section 18 of the WCA, to disability benefits, medical care and rehabilitation services, as well as to survivor benefits and a funeral grant for their dependants in case of death, provided by the WCF. The Government further states that irregular migrants, on the contrary, will be arrested, detained and sent back to their countries, in accordance with the Immigration Act B.E. 2522 (1979). However, given the number of irregular migrants waiting for repatriation, the Government had decided, since 1996, to authorize those of them who have undergone registration with the national authorities – 1 million persons approximately – to work temporarily in Thailand pending their repatriation. In case an occupational accident occurs to such registered migrants, the competent official of the SSO adjudicates the case at an amount equal to the compensation paid to Thai employees, in accordance with section 50 of the WCA, and orders the employer to pay compensation directly to the victim. Employers failing to comply are to be prosecuted, and employees or their families may bring the case to the courts.

In an attempt to facilitate the registration of all irregular migrant workers, a Cabinet resolution of 19 January 2010 allowed undocumented migrants from Cambodia, Lao People’s Democratic Republic and Myanmar to register until 28 February 2012 and to work legally in Thailand, provided that they engage in the nationality verification process required by the SSO with a view to obtaining temporary passports. For nationals from Lao People’s Democratic Republic and Cambodia, their countries of origin have dispatched officials in nationality verification centres located in Thailand. By contrast, the nationals of Myanmar continue to be required by their Government to travel back to their country in order to obtain the necessary documents and complete the nationality verification process, as domestic regulations prevent government officials from operating outside Myanmar. The Thai Government reports that, as of September 2010, 188,323 migrant workers from Myanmar had, nonetheless, completed this process and become eligible to affiliate to the WCF on the same footing as regular migrants and Thai nationals, in accordance with the SSO announcement on the registration of Laotian, Cambodian and Myanmar migrants with verified nationalities, dated 8 October 2010 (B.E. 2553).

With regard to other migrant workers who have not yet completed the nationality verification process, the SSO proposed to set up a separate fund, in order to accord registered migrant workers who suffer work-related injuries, sickness, or death the same protection as that received by Thai workers under the WCF. In an effort to address its labour shortage problem and to decrease the employment of unregistered migrant workers, the Government has also taken measures, through diplomatic channels, aimed at recruiting new, so called “fresh”, migrant workers from the neighbouring countries. These “fresh” workers will be able to enter Thailand legally and be allowed to stay and work in the country for a renewable period of two years. Finally, the Ministry of Labour has started a policy of enforcing the law on labour inspection by targeting the risks of forced labour and human trafficking for labour exploitation.

According to the information provided by the State Enterprise Workers Relations Confederation (SERC) in September 2011, irregular migrants in Thailand represented 90 per cent of all migrants in the country and an estimated 5 to 10 per cent of the country’s labour force. Some 980,000 migrant workers have registered and obtained work permits from the Thai authorities. These temporary documents delivered by Thai authorities, however, are not recognized by the SSO and the workers concerned are required to complete the nationality verification process.

In many cases, these migrants are left without any guarantee of compensation for a work-related accident. This is because many employers also disregard the SSO orders to pay compensation, while the workers concerned often are unaware of their rights, face language barriers, and are unable to prosecute their employers in courts following a work accident. In some instances reported by the SERC, victims of occupational accidents are denied access to health care institutions with fatal consequences. The numerous cases referred to the Supreme and Administrative Courts by the SERC have so far remained unconsidered for many years, and no national court had accepted competence to review the 2001 SSO circular.

In this situation, the Government has recently taken new amnesty measures allowing more undocumented migrants to register and obtain the work permit. It approved the resolution of 14 June 2011, establishing a new Work Accident Insurance Fund for migrant workers undergoing the nationality verification process. This fund would be separate from the WCF and open to registered migrants possessing identification cards or identity documents issued by the Ministry of Interior or the Ministry of Labour. In contrast to the WCF, the affiliation of migrant workers to the newly established fund would be voluntary and no penalties would be imposed on employers who fail to contribute to this fund. The SERC concludes that the new scheme continues to discriminate against migrant workers by denying them equal access to the WCF and, together with the National Congress of Thai Labour (NCTL), demands that the Government repeal the 2001 SSO circular.

The Committee takes note of the above information and observes that the question of the protection of the rights of migrants in Thailand remains under the constant scrutiny of UN human rights bodies. In October 2011, the Government stated in the framework of the Universal Periodic Review of Thailand, held under the auspices of the Human Rights Council, that migrant workers from neighbouring countries make valuable contributions to the Thai economy and that it will seek to uphold international labour standards while preserving Thailand’s economic, social, and national security interests. The Government indicated that it has already taken action to address the problems faced by migrant workers by allocating funds to provide health care subsidies for people without status; launching campaigns to disseminate information on the rights and duties of employers and employees, as well as information pertaining to labour rights published for migrant workers in their native languages; and providing financial assistance for expenses incurred during the judicial process. The Government also indicated that it intends to ratify Conventions Nos 87 and 98 to protect the rights of Thai and migrant workers alike and to fully engage the civil society in the follow-up review aimed at enhancing human rights protection for migrant workers and preventing human trafficking.

The Committee recalls that a key principle on which the right to social security is premised is non-discrimination and pertains to all persons, irrespective of status and origin. The Committee recognizes that extending the right to social security, including the right to medical care to non-citizens is a key challenge for many societies today. With regard to non-citizens, even where they are in an irregular status on the territory of another state, such as undocumented workers, they should have access to basic benefits and particularly to emergency medical care (see General Survey on social security instruments, 2011, paragraph 260). In view of the foregoing, the Committee understands that the Government fully realizes the need to implement effectively the measures announced to protect the human rights and dignity of migrant workers, and that the Government also realizes the determination of the international community to help resolve the problems involved as soon as possible. The Committee urges the Government to ensure that these measures achieve rapid and substantial results on the ground in the near future and, that the measures effectively eliminate cases of denial of emergency medical care and related benefits to uninsured migrant workers suffering industrial accidents referred to by the SERC.

With regard to the question of the affiliation to the WCF of registered migrant workers, the Committee notes that, in law, the SSO circular No. RS.0711/W751 of 2001 continues to require that registered migrant workers who do not hold national passports complete the nationality verification procedure before they can affiliate to the WCF. The Committee regrets that the Government’s report is silent regarding the demands to amend or repeal this circular, or at least to instruct the SSO to recognize for affiliation purposes the temporary identity documents and work permits issued by the Government agencies to registered migrant workers. Considering the current legal impasse involving judicial proceedings initiated domestically by the SERC to contest the legality of the circular, the Committee also regrets that the report does not reply to the questions raised in its previous comments with regard to the procedures existing in the Thai legal system to supervise, review and revoke contested circulars issued by a governmental agency.

The Committee observes that the restrictions established by this circular, in contradiction with the Workmen’s Compensation Act of 1994, remain a major obstacle to the enjoyment by hundreds of thousands of registered migrant workers from Myanmar of the right to equality of treatment guaranteed to them by Article 1 of the Convention. In this situation, the Committee notes the Government’s decisions to re-open the possibility for irregular migrants not yet registered to do so and obtain work permits, and also to create a new Work Accident Insurance Fund (WAIF) specifically intended to ensure their coverage during the nationality verification phase, following which they would be, in principle, entitled to affiliate to the WCF. However, the Committee understands that the affiliation to the WAIF would be left to the discretion of employers. Those deciding not to contract the new insurance would remain directly liable to pay their workers compensation in case of employment injury. In practice, the creation of the WAIF does not bring the Government closer to guaranteeing the right to equality of treatment recognized by the Workmen’s Compensation Act of 1994 for migrant workers registered by the Thai authorities and given work permits. The creation of this new fund also risks introducing a double standard of protection, by giving employers a legal opportunity not to insure their migrant workers against occupational accidents.

Moreover, the decision to re-open the registration procedure to new undocumented migrants and provide for their voluntary insurance coverage by the WAIF during the nationality verification process may lead to institutionalizing the discriminatory status of these workers, few of whom end up actually protected by the WCF on a par with Thai nationals. The Committee observes that this long train of factors – the lengthy nationality verification procedure, the SSO prohibition for employers to affiliate their registered migrant workers to the WCF, the paralysis of the judiciary system unable to consider the legality of the SSO circular, the voluntary nature of the affiliation to the WAIF, and the poor enforcement of employer liability to pay compensation to victims of industrial accidents who are not covered by either fund – in effect, incites employers to evade paying any compensation or social insurance costs for their workers and creates vast opportunities for exploitation that have been denounced by trade unions and numerous non-governmental organizations.

The Committee also observes that this state of affairs defies the 2007 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, signed by Thailand, which calls upon the Thai Government to adopt a comprehensive migration policy promoting, in particular, the welfare of migrant workers through access to social welfare services and to the legal and judicial system in case they are victims of discrimination, abuse, exploitation or violence. The Committee calls on the Government to exercise its general responsibility for the proper functioning of the social security system and to ensure that the SSO adopts a proactive approach that will bring registered migrants under the protection of the existing employment injury scheme and at the same time to enforce the effective functioning of the direct employer liability scheme. The Committee considers that in order to change the current situation for the better and ensure the gradual transition of migrant workers to be under the protection of the WCF on an equal footing with Thai nationals, the Government should take urgent measures to strengthen and integrate all the available means of protection into a comprehensive safety net providing basic protection to all migrant workers in case of employment injury. It should also require employers to take out an insurance policy for each registered migrant worker employed by them, enforced by a regime of sanctions sufficient to dissuade employers from evading their legal obligations. The Committee invites the Government to provide detailed information regarding its plans and actions in this respect together with the complete statistical data on the number of migrant workers registered by the Thai authorities and given work permits, the number of migrant workers subjected to the nationality verification process and voluntarily affiliated to the WAIF, and the number of migrant workers that have completed this process and are compulsorily insured in the WCF.

The Committee also wishes to emphasize that, in accordance with Article 4 of the Convention, all ratifying members undertake to afford each other mutual assistance with a view to facilitating the application of the Convention and the execution of their respective laws and regulations on workmen’s compensation. In this respect, the Government of Thailand reports measures, taken in cooperation with Cambodia and the Lao People’s Democratic Republic, to make the nationality verification process easier for registered migrants originating from these countries, facilitating the fulfilment of the conditions for their subsequent affiliation to the WCF. The Committee also notes that the bilateral cooperation framework between Thailand and Myanmar has been reactivated recently on the occasion of a ministerial meeting which took place in June 2011. As part of this reactivation, the Government of Myanmar has committed itself to give all needed assistance through its diplomatic and consular representations and to issue in the near future the remaining temporary passports necessary for the completion of the nationality verification process by Myanmar migrants working in Thailand. The Committee underlines the need to protect the rights of migrant workers and to assist them effectively. In view of the fact that Myanmar and Thailand both have ratified the present Convention, the Committee hopes that they will pursue their cooperation with a view to overcoming the administrative difficulties in the application of the Convention.

[The Government is asked to reply in detail to the present comments in 2012.]

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In a communication dated 5 June 2009, the State Enterprise Workers’ Relations Confederation (SERC) alleges that the Government of Thailand fails to grant to migrant workers who fall victims of industrial accidents, and to their dependents, the right to equal treatment with Thai nationals, in breach of domestic and international labour standards. Since 2006, the SERC has supported research undertaken by the Human Rights and Development Foundation (HRDF) establishing that refusal to allow migrants access to work-related accident and disease compensation from the Workmen’s Compensation Fund (WCF) constitutes systematic discrimination against approximately two million unskilled migrant workers from Myanmar, Cambodia and Lao People’s Democratic Republic. The refusal of access to the WCF results from the inability of migrant workers to satisfy, in most cases, the conditions imposed on them by the circular of the Social Security Office (SSO) RS0711/W751 of 2001 relating to the provision of protection for migrant workers who incur work-related accidents or illnesses, which requires migrant workers to possess a passport or alien registration documents and obliges their employer to register and pay contributions to the WCF in respect of the worker concerned. Recognizing that many of these workers have entered Thailand illegally without official documents, the Government of Thailand has, since 1996, created systems for registering migrants from Myanmar to work legally once they are in Thailand and has issued work permits and identity cards with the mention “not possessing Thai nationality” to over 500,000 nationals of Myanmar (documents Thor. Ror. 38/1, issued by the Department of Provincial Administration, Ministry of Interior). The SSO, however, refuses to accept these documents to enable migrants to access the WCF as insufficient documentary evidence under the circular RS0711/W751, and prohibits employers of migrant workers holding Thai work permits and identity cards from paying contributions to the WCF. The SERC alleges that the circular RS0711/W751 and its implementation by the SSO violate the Workmen’s Compensation Act of 1994 (WCA), which applies equally to national and migrant workers and obliges employers to pay contributions to the WCF irrespective of their nationality. The numerous attempts to challenge the legality of the SSO circular before the labour and administrative tribunals have failed. The Labour Court of Appeal refused to revoke the SSO circular on the basis that it did not exceed the powers of the SSO. The Supreme Administrative Court also rejected the case on the basis that administrative tribunals are not competent to review labour policies falling within the jurisdiction of labour courts. Although the decision of the Labour Court of Appeal was itself appealed to the Supreme Court and to the Central Labour Court, the SERC states that any decision of these courts revoking the SSO circular will not be binding since in the Thai legal system the only tribunals having competence to revoke administrative acts of the Ministry of Labour are the administrative courts. Having exhausted all domestic legal remedies and fearing that the SSO circular instituting unequal treatment of migrant workers might become unreviewable by the national tribunals, the SERC has decided to seek protection of migrant workers in Thailand under Convention No. 19.

In reply to these allegations, the Government states that the SSO of the Ministry of Labour realizes the suffering of migrant workers, many of whom are illegal migrants whose nationalities have not been verified. At present, the Department of Employment of the Ministry of Labour is verifying these workers’ nationalities and is expected to complete this task by February 2010. Migrants will subsequently be covered by the social security system, i.e. both the Social Security Fund and the WCF. Consequently, the requirement established by the SSO circular to possess a valid passport will no longer be applied to migrant workers. As for the employers’ obligation to pay contributions to the WCF in respect of migrant workers, the Government indicates that the WCA provides for equal treatment between Thai and foreign workers in this matter. Although migrant workers are not entitled to compensation from the WCF for work injuries, they receive compensation directly from their employers, the amount of which is equal to the compensation paid by the WCF.

The Committee notes with deep concern the situation of some 2 million workers from Myanmar, many of whom are described by the SERC as being in “a social zone of lawlessness” where they are not protected by the laws of Thailand or Myanmar. It notes, however, the stated commitment of the Thai Government to treat all workers fairly and equally without any discrimination based on nationality and to promote the human dignity of all migrant workers, documented or undocumented. The Committee considers 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 would require member States to deploy special and urgent efforts commensurate with the gravity of the situation, unilaterally as well as in cooperation with one another. With regard to the measures reported by the Thai Government, the Committee notes that, while it endeavours to treat all workers equally irrespective of their nationality, the SSO does not recognize the identity cards issued by the Thai authorities with the mention “not possessing Thai nationality” and the measures reported by the Government are directed exclusively at verifying nationalities of migrant workers. With regard to the situation in law, the Committee observes that, while the WCA grants foreign workers the right to equality of treatment, the SSO circular RS0711/W751 subjects the exercise of this right to fulfilment of certain conditions, which in the current situation effectively deprives migrant workers of protection by the WCF enjoyed by the Thai workers. With respect to the Government’s statement that foreign workers who are thus deprived from compensation by the SSO, are entitled instead to an equal compensation from their employer, 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. With these considerations in mind, the Committee observes that the principle of equal treatment in social security would lose all meaning if access to social security benefits were made subject to such conditions, the fulfilment of which for migrant workers becomes either particularly difficult or depends on the actions of the employers or of the authorities of the receiving country. To prevent and remedy such situations, the international social security law has put in place a number of safeguards, which offer guidance to governments wishing to apply the principle of equality of treatment in good faith. In particular, eligibility for workers’ compensation shall not be made conditional upon the payment of contributions by the employer in respect of the worker concerned. Governments shall assume the general responsibility for the proper administration of the social security institutions, ensuring their close cooperation with other agencies, such as the Ministry of Interior, Department of Employment, Immigration Service, etc., with a view, inter alia, to facilitating social security coverage of migrants. The Committee asks the Government to review the policy of the SSO concerning social security coverage and protection of migrant workers in case of occupational accidents and diseases 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. With respect to the SSO circular RS0711/W751, the Government is asked to explain what procedures exist in the Thai legal system to supervise, review and revoke contested circulars issued by a government agency at the level of the ministry concerned, at the level of the Government or by an independent judiciary authority. Finally, noting that the legality of the SSO circular is currently pending before the Supreme Court as well as the Central Labour Court, the Committee hopes that these jurisdictions will take into account the present comments.

[The Government is asked to reply in detail to the present comments in 2010.]

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The Committee notes the information provided by the Government and the comments made by the National Congress of Thai Labour concerning the manner in which the Convention is applied. It notes, among other information, the application in the near future of the Workmen’s Compensation Act to Government employees. It requests the Government to provide in its next report the information requested in relation to the following point.

Article 1 of the Convention. Equality of treatment between the nationals of Thailand and of countries that are parties to the Convention in the event of employment injury. The Committee notes that, in accordance with the provisions of the Convention, the Workmen’s Compensation Act of 1994 applies in general terms to employees who are both nationals and to foreign workers. It also notes that, according to the Government’s report, in order to be able to submit valid claims for compensation in the event of employment injury, foreign workers have to meet certain conditions relating, in particular, to the payment of contributions by their employer at the rate of not less than the minimum wage rate. The Committee would be grateful if the Government would indicate whether, as appears to be the case, this latter condition related to the payment of minimum contributions applies equally in identical terms to Thai nationals.