Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Thailand (Ratification: 2017)

Thailand (ratification: 2017)

The Committee notes the Government’s first report.

Article 1 of the Convention. Prohibition of discrimination and scope of application. Legislation. The Committee notes that article 27 of the Constitution prohibits “unfair discrimination” on the grounds of “origin, race, language, sex, age, disability, physical or health condition, personal status, economic and social standing, religious belief, education or political view” as well as discrimination on the basis “of any other grounds”. Article 27 further proclaims that men and women shall have equal rights and article 40 states that a person shall enjoy freedom to engage in an occupation. The Committee also notes that according to article 5 of the Constitution “[t]he provisions of any law, rule or regulation or any acts, which are contrary to or inconsistent with the Constitution, shall be unenforceable”. The Committee also notes that, according to the 2017 final observations of the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW), the prohibition of discrimination included in the Constitution and the legislation does not apply in the southern border provinces (Narathiwat, Pattani and Yala), where special emergency laws are applied (CEDAW/C/THA/CO/6-7, 24 July 2017, paragraph 8). With respect to working and employment conditions, promotion and termination, the Committee notes the Government’s indication in its report that every worker is treated equally under the Labour Protection Act (LPA) (BE 2541 (1998)). In this regard, the Committee notes that the LPA does not apply to: (1) central administration, provincial administration, and local administration; and (2) state enterprises under the law governing state enterprise labour relations (section 4). Furthermore, pursuant to section 22 of the LPA, agriculture, sea fishing, loading or unloading of marine cargoes, home work and transport work, among others, are subject to different labour regulations. The Committee notes that in some of these sectors, migrant workers are highly represented (A/HRC/41/43/Add.1, 21 May 2019, paragraph 55). Concerning discrimination based on sex, the Committee notes that, under section 15 of the LPA and subsequent amendments, men and women employees shall be treated equally; section 43 prohibits termination of employment of the basis of pregnancy; and section 53 enshrines the principle of equal remuneration between men and women for work of equal value. The Committee also notes that the Gender Equality Act (BE 2558 (2015)) prohibits “unfair gender discrimination” (section 17) and defines it as “any act or omission of the act which causes division, discrimination or limitation of any right and benefit either directly or indirectly without justification due to the fact that the person is male or female or of a different appearance from his/her own sex by birth” (section 3).

The Committee notes that the non-exhaustive list of the prohibited grounds of discrimination contained in the Constitution may cover all the grounds spelt out in Article 1(1)(a) of the Convention, although the grounds of colour is not explicitly referred to (“any other ground”). At the same time, the Committee notes that the LPA does not contain a general prohibition of discrimination in employment and occupation. Moreover, in the national legislation there is no definition of discrimination, with the exception of the provision of the Gender Equality Act mentioned above. The Committee notes that the definition of gender discrimination contained in the Gender Equality Act explicitly refers to direct and indirect discrimination, in line with the Convention, but is narrower than the definition provided in Article 1(1)(a) of the Convention, in that it appears to refer to the impact of any act or omission on the equality of treatment only (“rights and benefits”), and does not encompass the adverse effect of the acts and omissions on the equality of opportunity.

In light of the above, the Committee requests the Government to:

• - provide information on how article 27 of the Constitution as well as the relevant provisions of the Labour Protection Act (LPA), and the Gender Equality Act (BE 2558 (2015)) are applied in practice to ensure that the principles of the Convention extends to all aspects of employment and occupation covered by Article 1(3) the Convention and all grounds of discrimination prohibited under Article 1(1)(a) of the Convention, in particular how the Courts have been interpreting the expression “any other grounds”;
• - indicate how it is ensured that the same protection is applied to all workers - including the categories of workers excluded from the scope of application of the Labour Protection Act (LPA) (BE 2541 (1998)) and subsequent amendments under section 22; and
• - indicate how non-discrimination and equality of opportunity and treatment are ensured and promoted in respect of the workers in provinces where emergency laws are applied.

The Committee requests the Government to provide information on the application of the Convention to workers in the public sector with respect to all aspects of employment and occupation covered in Article 1(3) of the Convention and in respect of all the grounds of discrimination prohibited under Article 1(1)(a).

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee notes that under section 16 of the LPA, an employer, a chief, a supervisor, or a work inspector shall be prohibited from committing sexual abuse, harassment or nuisance against an employee. In this regard, the Committee notes the Government’s indication that this provision is intended to protect both women and men in employment from sexual harassment and abuses by those holding supervisory roles. The Committee also notes the Government’s indication that, in 2010, the Civil Official Regulation on Acts Constituting Sexual Harassment or Sexual Abuses BE 2553 (2010) was adopted and that guidelines on preventing and addressing sexual harassment in the workplace were issued in 2015 by Cabinet Resolution. The Committee further notes that section 10(2), of the Gender Equality Act, envisages the adoption of special measures to eliminate gender-based violence.

The Committee therefore requests the Government to provide information on the following:

• - whether the prohibition of sexual harassment under section 16 of the LPA covers both quid pro quo harassment (any physical, verbal or non-verbal conduct of a sexual nature and other conduct based on sex affecting the dignity of women and men which is unwelcome, unreasonable and offensive to the recipient; and a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person’s job) and hostile work environment (conduct that creates an intimidating, hostile or humiliating working environment for the recipient);
• - examples of application of this provision in practice;
• - how protection from sexual harassment is ensured in law and practice in respect of harassment practised by co-workers and clients or other persons met in connection with performance of work duties;
• - how protection from sexual harassment is ensured in law and practice in respect of vocational training, access to employment, and performing work in an occupation; and
• - examples of application of section 10(2) of the Gender Equality Act with regard to employment and occupation.

Article 1(2). Inherent requirements of the job. The Committee notes that article 27 of the Constitution provides that, in the case of members of the armed forces, police force, government officials, other officials of the State, and officers or employees of State organizations, the enjoyment of equal rights may be restricted by law “in relation to politics, capacities, disciplines or ethics”. The Committee also notes that section 17(2) of the Gender Equality Act allows for exceptions to the prohibition of gender discrimination “for the compliance with religious principles”. The Committee recalls that, under Article 1(2) of the Convention, distinctions exclusions or preferences in respect of a particular job are not deemed to be discriminatory if they are based on the inherent requirements of such job. These measures should correspond in a concrete and objective way to the inherent requirements of a specific and definable job, function or tasks. Criteria such as political opinion or religion may be taken into account as inherent requirements of certain posts involving special responsibilities. However, the inherent requirements of the particular job must be evaluated in the light of the actual bearing of the tasks performed. The systematic application of requirements involving one or more of the grounds of discrimination set out in the Convention is not admissible (General Survey on the fundamental Conventions, 2012, paragraphs 828 et seq.). In light of the above, the Committee asks the Government to provide information on the application in practice of article 27 of the Constitution and section 17(2) of the Gender Equality Act, including any relevant judicial decisions, and to indicate how it is ensured that the restrictions provided for in those provisions comply with the Convention.

Article 2. National Equality Policy. The Committee notes the Government’s indication that it has adopted various policies to promote equality in respect of employment and occupation. The Committee notes in particular that the 20-Year National Strategy (BE 2018–2037) sets out, among others, to promote social equality and equity and encompasses interventions in the areas of vocational training, employment and occupation. The Committee also notes that, under the 12th National Economic and Social Development Plan (2017–2021), strategic actions are envisaged to reduce inequality (strategy 2), including through improving access to education, skills-training and employment, and supporting income generating opportunities for the most disadvantaged groups. The Committee asks the Government to provide information on the specific measures adopted under the 20-Year National Strategy (BE 2018 2037) and the 12th National Economic and Social Development Plan (2017 – 2021) to eliminate discrimination based on, at least, all the grounds prohibited under Article 1(1)(a) the Convention and promoting equality of opportunity and treatment in employment and occupation, and on their results.

Articles 2 and 3. Equality of opportunity and treatment between men and women. The Committee notes that section 10(1) of the Gender Equality Act provides for the creation of a Gender Equality Promotion Committee mandated, among other things, to formulate policies, measures and plans to promote gender equality in the public and private sectors. The Committee also notes the Government’s reference to the Women Empowerment Strategy 2017–21, which focuses on local actions to improve women’s livelihoods and to provide relevant training for women unemployed, educationally disadvantaged and at risk of sexual exploitation and human trafficking. Furthermore, the Committee notes that the 20-Year National Strategy (BE 2018–2037) includes, among its objectives, the promotion of gender equality through the tackling of social attitudes about gender roles, the promotion of shared family responsibilities between men and women, the adoption of workplaces measures that would allow both men and women to meet their family responsibilities, and the enhancement of economic opportunities for women. The Government also informs about various occupational training activities for women undertaken by the Department of Women’s Affairs and Family Development of the Ministry of Social Development and Human Security as well as by the Ministry of Labour in cooperation with the ILO with a view to reducing the gap in science, technology, engineering and mathematics (STEM) skills between men and women and promote women’s access to employment. The Committee moreover notes that, in its latest report (2019) to the UN Commission on the Status of Women (Beijing+25), the Government indicates that traditional attitudes on gender roles are still an obstacle to the promotion of gender equality and women’s advancement, and it is therefore also focusing on changing those attitudes by taking measures to address stereotyping in the mass media, education curricula and textbooks, among others. The Committee takes notes of all the initiatives and measures taken to address discrimination and promote equality of opportunity and treatment between men and women in employment and occupation. The Committee asks the Government to continue to provide information on the results of the above-mentioned initiatives and measures and any obstacle encountered. It also asks the Government to provide statistical data on the evolution of the distribution of men and women in the various economic sectors and occupations. Please also provide information on any specific measure, policy or plan adopted by the Gender Equality Promotion Committee with a view to promoting and applying the principles of the Convention in the private and public sectors, including the promotion of workplace measures which favour shared family responsibility between men and women and address gender stereotypes affecting women’s access to and advancement in employment and occupation.

Equality of opportunity and treatment irrespective of race, colour and national extraction. Highland peoples and other ethnic groups. The Committee notes the Government’s indication that the Ministry of Social Development and Human Security has been implementing programmes to support the occupation and employment of highland peoples (“hill tribes”) and improving the marketability of their products. The Government also refers to the activities undertaken by the Social Welfare Promotion for Highland People Centre which is charged with realizing surveys and collecting information on highland communities and providing services in a number of areas, including education, income-generation and employment, on the basis of community plans. The Committee further notes that under the 20-Year National Strategy (BE 2018–2037) various measures are envisaged with a view to securing access to land, including certifying communal land-use rights and resolving disputes around forested lands, among many others. In this regard, the Committee also notes the Recommendation No. 3/2561of 2018 by the National Human Rights Commission, available on its website, on measures or guidelines for promotion and protection of human rights, including recommendations for improvement of laws, rules, regulations or orders in case of determination of areas to make a living, to reside and to carry on the way of life of ethnic group and local traditional communities in national forest reserve areas and national park areas.

The Committee refers to its general observation of 2018, in which it noted that unsecure land tenure and biased approaches towards the traditional occupations engaged by certain ethnic groups, which are often perceived as outdated, unproductive or environmentally harmful, continue to pose serious challenges to the enjoyment of equality of opportunity and treatment in respect of occupation. It recalls that promoting and ensuring access to material goods and services required to carry out an occupation, such as secure access to land, and access to credit and resources, without discrimination, should be part of the objectives of a national policy of equality under Article 2 of the Convention. In the light of the above, the Committee asks the Government to continue to provide information on the measures adopted to promote equality of opportunity and treatment in employment and occupation for Highland peoples and other ethnic groups, including information on the measures taken to ensure that they can engage without discrimination in their traditional occupations and livelihoods and on any measures adopted in this regard as a follow-up to the recommendations issued by the National Human Rights Commission.

General observation of 2018. Regarding the above issues, and more generally, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and asks the Government to provide information in response to the questions raised in that observation.

Equality of opportunity and treatment irrespective of disabilities. The Committee notes the Empowerment of Persons with Disabilities Act BE 2550 (2007), which, among other things, charges the National Commission on Promotion and Development of Life Quality of Disabled Persons with addressing discrimination against persons with disabilities, including through the adoption of policies, plans and programmes (section 6), and the examination of petitions alleging discriminatory treatments (section 16). The Committee also notes the Ministerial Regulations prescribing the Number of Persons with Disabilities Quota for Entrepreneurs and Government Agencies and the Fees to be Remitted by Employers or Entrepreneurs to the Fund for Promotion and Empowerment of Persons with Disabilities’ Quality of Life (BE 2554 (2011) and the Amendment No. 2, BE 2560 (2017)). It further notes the information provided by the Government on the programmes supported through the Fund for Persons with Disabilities Empowerment with a view to promoting the access of persons with disabilities to employment or the engagement in an occupation as well as the establishment of Service Centres for Persons with Disabilities. The Committee asks the Government to continue to provide information on the measures taken to promote equality of opportunity and treatment in employment and occupation for persons with disabilities, including information on the following: (i) any action taken by the National Commission on Promotion and Development of Life Quality of Disabled Persons and any relevant services provided by the Service Centres for Persons with Disabilities, and their results; (ii) any petitions concerning discrimination in employment and occupation dealt with by the National Commission and their outcomes; (iii) statistical data on the situation of persons with disabilities in the labour market, disaggregated by sex; and (iv) information on the application of the quotas established under the Ministerial Regulations BE 2554 (2011) and subsequent amendments.

Article 3(a). Cooperation with workers’ and employers’ organizations. Noting the information provided by the Government concerning the establishment of various tripartite committees in charge of labour-related matters, the Committee asks the Government to provide details on any specific initiatives undertaken by these bodies with a view to promoting the principles of the Convention.

Article 4. Measures affecting an individual suspected of activities prejudicial to the security of the State. The Committee notes that section 17(2) of the Gender Equality Act allows for exceptions to the application of the principle of non-discrimination for reasons related to the national security. The Committee also notes that under section 40 of the Constitution a person’s freedom to engage in an occupation can be restricted by law for the purpose of maintaining the security of the country or for other public interests, among other reasons. The Committee further notes the Government’s indication that there are no legal or administrative measures nor national guidelines governing employment or occupation for individuals who are suspected of or have engaged in activities prejudicial to the security of the State. The Committee recalls that all measures of State security should be sufficiently well defined and precise to ensure that they do not become instruments of discrimination on the basis of any ground prescribed in the Convention. The application of such measures must be examined in the light of the bearing which the activities concerned may have on the actual performance of the job, tasks or occupation of the person concerned. Otherwise, there is a danger, and even likelihood, that such measures entail distinctions and exclusions based on political opinion or religion, which would be contrary to the Convention. Furthermore, the persons concerned shall have the right to appeal to a competent body, which should be separate from the administrative or governmental authority and should offer a guarantee of objectivity and independence (General Survey of 1988 on equality in employment and occupation, paragraph 136; and General Survey of 2012, paragraphs 834–835). In light of the above, the Committee asks the Government to provide examples of application of article 40 of the Constitution and section 17(2) of the Gender Equality Act in the areas of employment and occupation, and to indicate how it is ensured that the restrictions adopted comply with Article 4 of the Convention and do not constitute discrimination under its Article 1.

Article 5. Special measures. Noting that article 27 of the Constitution provides for the adoption of special measures to eliminate obstacles to or promote persons’ ability to exercise their rights or freedoms on the same basis as other persons, the Committee asks the Government to indicate if any special measures have been adopted under this article to promote equality of opportunity and treatment in employment and occupation for categories in need of special protection or assistance.

Maternity protection. The Committee notes that under section 15 of the LPA unequal treatment between men and women may be allowed if required by the “description or nature of work”. Section 38 of the LPA introduces restrictions to women’s access to a number of works, such as mining or construction work to be performed underground, underwater, in a cave, in a tunnel or mountain shaft, except where the conditions of work are not harmful to the health or body of the employee. Section 39 further provides for restrictions in the case of pregnant women, concerning the type of tasks that they are allowed to perform and their working time (i.e. night work, overtime work and work on holidays). Noting these provisions, the Committee wishes to underscore that protective measures for women may be broadly categorized into: (1) those aimed at protecting maternity, in the strict sense, which come within the scope of Article 5 of the Convention; and (2) those aimed at protecting women generally because of their sex or gender based on stereotypical perceptions about their capabilities and appropriate role in society, which are contrary to the Convention and constitute obstacles to the recruitment and employment of women (General Survey of 2012, paragraph 839). The Committee recalls that it considers that provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking account of gender differences with regard to specific risks to their health. Therefore, any restrictions on women’s access to work based on health and safety considerations must be justified and based on scientific evidence and, when in place, must be periodically reviewed in the light of technological developments and scientific progress, to determine whether they are still necessary for protection purposes. The Committee asks the Government to review periodically the provisions on restrictions to women’s access to certain jobs or occupations included in the LPA in the light of the above principles to ensure that any protective measures taken are limited to maternity protection, in the strict sense, or are based on occupational safety and health risk assessments and do not constitute obstacles to the employment of women, and to provide information on the results of such review.

Enforcement. The Committee notes the information provided by the Government concerning the complaints received by the National Human Rights Commission about unfair discrimination in 2018, which represented 5.6 per cent of the total complaints received. It also notes the information concerning judicial decisions handed down by the Supreme Court on cases involving gender discrimination in respect of retirement age and discrimination based on disability in respect of access to employment. The Committee asks the Government to continue to provide information on judicial decisions and cases dealt with by the National Human Rights Commission involving issues related to the application of the Convention, as well as information on any violations in this respect brought to the attention of or detected by the Labour Protection and Welfare Offices, and their outcomes. Please also provide information on any relevant action taken by the Committee on Consideration of Unfair Gender Discrimination established under section 14 of the Gender Equality Act.