Observación (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - Tailandia (Ratificación : 1969)
Protocolo de 2014 relativo al Convenio sobre el trabajo forzoso, 1930 - Tailandia (Ratificación : 2018)

The Committee notes the observations of the International Transport Worker’s Federation (ITF) received on 4 September 2019.

Articles 1(1), 2(1) and 25 of the Convention. I. Vulnerability of migrant workers in the fishing sector to the exaction of forced labour and trafficking. In its previous comments, the Committee noted that, at its 329th Session (March 2017), the Governing Body approved the report of the tripartite committee that was set up to examine the representation made by the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF) alleging non-observance of the Convention by Thailand.

The Committee noted that the representation raised two major sets of allegations with regard to compliance with the Convention, namely (i) the situation of workers on board Thai fishing vessels, particularly migrant workers, who were allegedly exposed to forced labour and trafficking; and (ii) the responsibility of the State to ensure that the prohibition of forced labour was strictly enforced by effective and adequate penal sanctions. The Committee also noted that the tripartite committee examined allegations raised by the ITUC and the Government’s explanations on the measures taken to combat forced labour and trafficking in the fishing sector, particularly with regard to: (a) recruitment practices; and (b) employment practices.

(a) Recruitment practices

The Committee noted that the tripartite committee examined several issues related to: (i) brokers and recruitment fees; (ii) the issue of contract substitution; and (iii) the issue of corruption and trafficking in persons.

(i) Brokers and recruitment fees. In its previous comments, the Committee noted the provisions under the Royal Ordinance on the Management of Foreign Workers Employment B.E. 2560 (23 July 2017) (Royal Ordinance B.E. 2560) which provided for harsher penalties for offenders and stated clearer responsibilities of employers and licensed recruitment agencies. The Committee also noted the observations made by the ITUC in January 2016 that some migrant and Thai workers in certain fishing vessels had paid recruitment fees of up to US$742 to brokers. In addition, they had reported not receiving any information regarding working conditions, payment of wages or the length of time at sea prior to getting on board the vessels. The payment system consisted of salary advances sent home in undocumented transfers via brokers and lump sums promised to workers after completing their work at sea. In this regard, the Committee noted the Government’s indication that it had prohibited the imposition of recruitment fees on migrant workers, except for certain costs such as the cost of preparing documents and transportation expenses. The Committee requested the Government to continue to strengthen its efforts to ensure that migrant workers in the fishing sector are not exposed to practices that would increase their vulnerability to forced labour, in particular in matters related to the payment of recruitment fees and the recruitment by illegal brokers.

The Committee notes from the observations made by the ITF that the interviews with the fisher members of the ITF’s Fishers Rights Network (FRN) over the past 12 months in Ranong, Songkhla and Trat provinces revealed that 89 per cent of fishers are in debt bondage of more than 10,000 Thai baht (THB). The average debt bondage across the entire FRN network is THB21,000 which represents at least two months’ salary for most fishers.

The Committee notes the Government’s indication in its report that the Foreigners’ Working Management Emergency Decree (No. 2) B.E. 2561 (2018) (FWME Decree), which repealed certain provisions of the Royal Ordinance B.E. 2560, stipulates that an employer who brings a foreigner to work with him/her in the country shall not request or accept money or other assets from such workers, except for the expenses paid by the employer beforehand for passport fees, health check-up fees, work permits or other similar expenses as prescribed in a notification by the Director-General of the Department of Employment (section 24). Any employer who violates this provision shall be liable to imprisonment for a term not exceeding six months and a fine of twice the amount or asset value requested, received or accepted by the employer in this regard (section 53). The Committee further notes the Government’s information on the steps taken to integrate various government agencies such as the Department of Employment, the Royal Thai Police, Security agencies and administrative officials in respective areas for effectively enforcing this law. Moreover, the Ministry of Labour has integrated cooperation with the navy, the army, the Department of Immigration and other local security agencies to intercept smuggling of migrant workers into the country as well as to conduct operations against recruitment companies and illegal brokers. Accordingly, the Committee notes that in 2018: (i) the Department of Employment inspected 364 migrant workers recruitment agencies and brokers, identified and prosecuted 452 illegal brokers; (ii) the Royal Thai Navy conducted 10,563 patrols along the Thai territorial water border zones, identified 351 irregular migrants and arrested nine illegal brokers; (iii) the Royal Thai Army conducted 99,982 patrols along the territorial border and identified 24,664 irregular migrants; and (iv) the Department of Immigration intercepted and denied entry to 6,800 illegal migrants. The overall operations resulted in the deportation of 28,178 smuggled migrant workers. Noting the alarmingly high level of debt bondage among fisher members in the FRN network, the Committee urges the Government to continue to strengthen its efforts to ensure that migrant workers in the fishing sector are not exposed to practices that would increase their vulnerability to forced labour or debt bondage, in particular in matters related to the payment of recruitment fees and the recruitment by illegal brokers; and to report in detail on results in this respect. It also requests the Government to continue to provide information on the application in practice of section 53 of FWME Decree of 2018, indicating the number and nature of violations detected and the penalties imposed for cases of violations.

(ii) Contract substitution. The Committee previously noted that the tripartite committee observed the persistence of the practice of contract substitution of migrant workers. It noted that according to sections 14/1 and 17 of the Labour Protection Act of 1998 and section 6 of the Ministerial Regulation Concerning Labour Protection in Sea Fishery Work of 2014, a formal contract should be signed between the employer and the worker and a copy should be kept with the worker. Moreover, under the Fishery Law of 2017 an identification document (known as a Seabook) has to be issued by the owner of a fishing vessel to any migrant worker in the fisheries sector while signing a standard contract of the Department of Labour Protection and Welfare (DLPW) with that worker. The employment of a worker on a fishing vessel without an identification document, or without a licence shall be subject to a fine of THB400,000 (US$12,000). The Committee requested the Government to continue to strengthen its efforts to ensure that, in practice, labour contract substitution is effectively prohibited and that the competent authorities register and verify that the signed contract corresponded to the original offer of employment consented to by the worker.

The Committee notes from the observations made by the ITF that 78 per cent of the fishers interviewed by the FRN indicated that they do not have a copy of their employment contract in their possession while some others have never seen it. Some of them have it in Thai language, which is not their language and therefore are unable to understand their pay scale and other mandatory protections available for them.

The Committee notes that according to section 23 of the FWME Decree of 2018, an employer employing a foreigner shall prepare a written contract containing all the details as prescribed by the Director-General and keep it at the business place of the employer for inspection by the competent officials. The Committee further notes the information provided by the Government on the number of Seabook documents that have been issued for migrants under the Fisheries Act, 2017. Accordingly, from October 2017 to June 2019, 14,722 Seabooks were issued and between 30 September to 15 November 2017, 13,455 migrants who did not have a work permit were provided with special Seabooks. The Committee requests the Government to continue to strengthen its efforts to ensure that section 23 of the FWME Decree is implemented and that labour contract substitution is effectively prohibited, in practice. In this regard, it encourages the Government to ensure that the competent authorities register and verify that the signed contract corresponds to the original offer of employment consented to by the worker. It also requests the Government to take the necessary measures to ensure that the migrant workers are provided with a copy of their employment contract in their own language.

(iii) Corrupt and complicit officials. The Committee previously noted that the tripartite committee considered that corruption of government officials could create an environment of impunity that exacerbates the situation of vulnerability of migrant fishers and constitutes a major obstacle in the identification of victims of forced labour and trafficked victims. It also noted the observations of the ITUC in 2016, that often, police officers or high-ranking government officials threaten witnesses, interpreters or other police officers. The Committee requested the Government to continue to take proactive measures to ensure that government officials complicit with human traffickers are prosecuted and that sufficiently effective and dissuasive penalties are imposed in practice for violation of the legislation.

The Committee notes the Government’s statement that the number of government officials involved or colluding with the offences related to trafficking in persons have decreased due to the intensive legal measures that have been taken against such officials. According to the Government’s report, from 2013 to 2016, an average of 44 officials per year were prosecuted and disciplinary actions, including asset seizure/asset freezes, were carried out for their involvement in criminal cases. In 2017, the number had been reduced to 11 officials and in 2018, two officials were prosecuted. The Committee requests the Government to continue to take proactive measures to ensure that government officials complicit with human traffickers are prosecuted and that sufficiently effective and dissuasive penalties are imposed in practice for violation of the legislation. It requests the Government to continue to provide information on the measures taken in this regard, including data on the number of government officials who have been prosecuted and convicted for their involvement in the offences related to trafficking of persons.

(b) Employment practices

(i) Confiscation of seafarers’ identity documents (SIDs). In its previous comments, the Committee noted that the tripartite committee highlighted that the confiscation of SIDs is a serious problem in the Thai fishing industry. The Committee noted that according to section 68 of the Royal Ordinance B.E. 2560 of 2017, the work permit should always be kept with the migrant worker during his/her work while the confiscation of IDs shall be punishable under section 131 of the Royal Ordinance. The Committee requested the Government to strengthen its efforts to ensure the effective implementation of the Royal Ordinance B.E. 2560 of 2017.

The Committee notes the observations made by the ITF that only 13 per cent of the fishers interviewed had their IDs in their possession while most workers stated that the owner or captain retained possession of their IDs and denied the fishers free access to their documents. When fishers want to change boats, the vessel owner has to sign a release before fishers can legally change the employer. The owner can demand tens of thousands of baht from the fishers for their “document fees” before they release the document or can demand that the new vessel owner “purchase” the debt from the previous owner thereby continuing a severe system of debt bondage or forced labour.

The Committee notes the Government’s indication that the Foreigners’ Working Management Emergency Decree (No. 2) B.E. 2561 (2018) (FWME Decree), which repeals many of the provisions of the Royal Ordinance of 2017, addresses the problems arising from the work permit applications and difficulties in changing an employer with the implementation of a comprehensive system for prevention, protection, remedies and enforcement in line with the policy of hiring migrant workers. According to section 62 of the FWME Decree which repeals section 131 of the Royal Ordinance, any person who confiscates a work permit or identification card of a foreign worker shall be liable to imprisonment for a term not exceeding six months or a fine up to THB100,000 or both. The Committee further notes the Government’s indication that the provisions of the FWME Decree have been disseminated to employers for them to understand that work permits or other documents of the migrant workers shall be deposited with the employer upon consent of the worker and that employers should provide timely access to such documents at any time upon the request of the worker. Recalling that the practice of confiscation of work permits or SIDs is a serious problem that may increase migrant fisher workers’ vulnerability to abuse, by leaving them undocumented, reducing their freedom of movement and preventing them from leaving an employment relationship, the Committee urges the Government to strengthen its efforts to ensure that the FWME Decree of 2018 is effectively implemented, and that sufficiently dissuasive penalties for confiscation of work permits or SIDs are imposed on employers who are in breach of the legislation.

(ii) Withholding of wages. The Committee previously noted that the tripartite committee encouraged the Government to continue to strengthen its efforts to address the non-payment of wages, and ensure the effective application of the Ministerial Regulation concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014). It noted the ITUC’s assertions in its observations that withholding of wages continued to be a common practice in Thailand, and that weak labour law enforcement and access to justice has led to the lack of guarantee of the payment of wages. The Committee noted that section 8 of the 2014 Ministerial Regulation B.E. 2557 requires an employer to prepare a salary statement including paid leave in the Thai language and that section 11 prohibits the employer from withholding wages. If an employer intentionally refrains from the payment of the salary seven days beyond the agreed initial date of payment, he/she is required to pay an additional amount of 15 per cent of the amount withheld. The Committee requested the Government to ensure that the 2014 Ministerial Regulation B.E. 2557 is effectively implemented, so that all wages were paid on time and in full, and that deterrent penalties for non-payment of wages were imposed.

The Committee notes from the ITF’s observations that 82 per cent of the fishers surveyed indicated that they are not paid monthly. While 95 per cent of the fishers know that a bank account has been created along with an ATM card attached to that account, only 3 per cent indicated as having control and possession of their bank account and ATM card. In the majority of cases, the captains or owners control access to the bank account or ATM card and create fictitious electronic payment records showing compliance with minimum wage standards when in reality they are paying much less.

The Committee notes the Government’s information that the Port-In–Port-Out Control Centre (PIPO), which is a law enforcement mechanism to control and supervise whether the employees receive their benefits, conduct three levels of inspection on fishing vessels, fishing gears, and workers. Before and after a fishing vessel departs or arrives a port, the vessel must be inspected by a labour inspector in the PIPO to check the payslips and to ensure that the workers have received their wages and benefits as prescribed. The Committee further notes the information provided by the Government on the results of labour inspections conducted by the PIPO. However, the Committee notes with concern that there is no specific information on the number of cases that relate to wages. The Committee urges the Government to take the necessary measures to ensure that the provisions of the Ministerial Regulation B.E. 2557 are effectively implemented, so that all wages are paid on time and in full, and employers face appropriate sanctions for the non-payment of wages. It also requests the Government to continue to provide information on the monitoring activities of the PIPO, including the number of violations detected relating to the non-payment or withholding of wages and the penalties applied.

(iii) Physical abuse. The Committee previously noted that the tripartite committee emphasized the vulnerable situation of fisher workers who may face physical violence that could in certain cases amount to murder. The Committee noted that in its observations, the ITUC provided several examples of fisher workers who had been physically abused or suffered from health complications or even killed. Survivors reported that they were deprived of food for several days, and had to work for up to three days without a break. In this regard, the Committee noted the Government’s explanation that the amendment of 2015 (B.E. 2558) of the Anti Trafficking Act increased the penalty to 20 years’ imprisonment if the offence of trafficking causes the victim(s) serious injuries, and life imprisonment or death penalty if the offence causes the victim(s) death. The amendment of 2017 (B.E. 2560) of the Anti-Trafficking Act provides for more explicit provisions, including: (i) the revision of the definition of “exploitation” to cover slavery; and (ii) the revision of the definition of “forced labour or forced service” to cover confiscation of IDs and debt bondage. The Committee urged the Government to take the necessary measures to ensure that the Anti-Trafficking Act, as amended, was effectively implemented.

The Committee notes that Emergency Decree B.E. 2562 (2019), amending the Anti-Human Trafficking Act (B.E. 2551), includes offences related to forced labour or services. According to section 5 of the Decree, any person who compels another person to work or provide services by means of threatening to cause injury to the life, body, liberty, reputation or property of the person threatened; intimidating; using force; confiscating identification documents; using debt burden incurred by such person; or by using any other similar means shall be liable to imprisonment for a maximum term of four years or to a fine up to THB400,000 or to both. If the above offence results in the victim being seriously injured or having a fatal disease, such person shall be liable to imprisonment for a maximum term of twenty years and a fine or to life imprisonment and in case of victim’s death shall be liable to life imprisonment or the death penalty.

The Committee also notes the Government’s information on the measures taken for the effective enforcement of the Anti-Human Trafficking Act, including the various training activities provided for inquiry officials, administrative staff and labour inspectors on victim identification. Moreover, a workshop to consult the multidisciplinary teams and law enforcement bodies on victim identification was hosted in Bangkok with the participation of officials from the Chief Inquiry Office, the Department of Special investigations and the Department of Local administration. Recalling the particular nature of the work of fisher workers, due in part to their isolated situation at sea, the Committee once again underlines the importance of taking effective measures to ensure that this category of workers is not placed in a situation of increased vulnerability, especially when they are subjected to physical violence. The Committee therefore urges the Government to take the necessary measures to ensure that the provisions of the Emergency Decree B.E. 2562 (2019) are effectively implemented, and regularly monitored by the law enforcement bodies, to investigate cases of physical abuse. It also requests the Government to take the necessary measures to ensure that the appropriate sanctions are imposed on employers who are in breach of the legislation.

II. Law enforcement and access to justice. In its previous comments, the Committee noted that the tripartite committee highlighted the importance of: (a) strengthening the labour inspectorate body; and (b) providing access to justice and protection to the victims in order to enable the strict enforcement of the provisions prohibiting forced labour.

(a) Labour inspection and the application of penal sanctions

The Committee previously noted that the tripartite committee found that the Government had established multidisciplinary inspection teams on fishing vessels that had the mandate to interview workers with a view to preventing them from becoming victims of debt bondage and human trafficking in the fisheries sector. It noted that in addition to the development of the Vessel Monitoring System (VMS), the Command Centre for Combating Illegal Fishing (CCCIF) had established the Electronics Monitoring Messaging and Electronics Reporting System (EM and ERS) which would enhance the capability to control illegal trans-shipment at seas, and help in detecting cases of trafficking in persons. The Committee also noted that according to Order No. 22/2017 on the implementation to combat Illegal, Unreported and Unregulated fishing (IUU), any authorized official who detects unlawful practices under fishery laws, shall have the right to detain the vessel and report it to the Marine Department within 24 hours. It further noted the various trainings provided for labour inspectors and the employment of language coordinators in Department of Labour Protection and Welfare (DLPW) provincial offices, PIPO centres and Migrant Workers Assistance Centres to facilitate communication between migrant workers and government officials. The Committee encouraged the Government to continue to take measures to strengthen the capacity of the labour inspectors in detecting forced labour practices and trafficking of persons.

The Committee notes the observations made by the ITF that the PIPO’s use of the vessel monitoring system as a replacement for physical inspections will increase the risk of labour rights violations going unnoticed under the guise of statistics that falsely indicate compliance. The information from the electronic system could be used to conclude that there are no problems on vessels without ever inspecting a vessel or interviewing the crew. An electronic monitoring system may assist in combating illegal, unreported and unregulated fishing, but cannot be viewed as a replacement to physical inspections and human intelligence gathered through hands on inspection.

The Committee notes the Government’s information that the DLPW has increased the number of labour inspectors from 1,245 in 2016 to 1,900 in 2018. With regard to the measures taken to enhance the capacity of law enforcement officials in identifying victims of trafficking, the Committee notes the detailed information provided by the Government on the training and capacity-building activities carried out from 2016–18 for labour inspectors and other law enforcement officials. According to the Government’s information: (i) training was provided to 185 officials from the Ministry of Labour, Navy and Marine Police within the framework of the ILO Ship to Shore rights project, to increase their inspection skills, particularly in sea fishery and related businesses; (ii) training was provided to more than 250 labour inspectors and officials under the “Enhance Law Enforcement Efficiency for Qualitative Labour Inspectors Training Project” to prevent and deal with issues related to the use of forced labour, debt bondage, trafficking of persons and child labour; (iii) training activities was provided for 52 law enforcement officers to address illegal unreported and unregulated fishing problems; (iv) training activities on forced labour and debt bondage were provided for 101 labour inspectors; and (v) capacity-building activities were provided for 140 participants from the multidisciplinary teams to handle cases of trafficking in persons.

Moreover, the Committee notes the Government’s information that it has improved the methods of inspecting sea fishery workers, particularly to identify cases of forced labour and trafficking in persons and that the inspection ensures that workers have an employment contract as specified and receive benefits mentioned in the employment contract. The Government indicates that during 2018–19, owners of two fishing vessels were prosecuted and fined following a preliminary interview with workers in a secluded zone in the absence of the employer and through an interpreter. In 2018, the multidisciplinary team and interpreters interviewed 78,623 vessels in 22 coastal provinces and identified 511 violations relating to rest time, incorrect employment contracts, payslips and documents. Of these, 507 cases have been prosecuted, of which 482 litigations have been finalized.

The Committee further notes the information provided by the Government on the results of the labour inspections at the PIPO centres. Accordingly, in 2018, 74,792 fishing vessels were inspected, 509 offences were detected, 482 orders were issued, owners of 24 vessels were fined, and three cases were prosecuted. It further notes the Government’s indication that in 2018, 304 offenders of trafficking in persons were prosecuted, including 258 cases for sexual exploitation, 29 cases for employment-related issues, eight cases for the purpose of begging, and six cases related to the use of forced labour in the fishery sector. The Committee requests the Government to continue its efforts to strengthen the capacity of the labour inspectors in detecting forced labour practices and trafficking in persons in the fishery sector. It also requests the Government to continue to provide statistical information on the number and nature of violations related to forced labour or trafficking concerning migrant fisher workers that have been registered by the labour inspectors, as well as by the PIPO centres and penalties imposed. The Committee also requests the Government to take the necessary measures to ensure that the vessels are monitored through physical inspections by labour inspectors and the PIPO centres and that the inspection results are disaggregated by offences.

(b) Access to justice and assistance to victims

The Committee previously noted the tripartite committee’s observation that, while the legislation provided for the establishment of different complaints mechanisms, there existed some obstacles to their effective use by workers, such as the duration of the complaints procedure, language barriers and the lack of information on preventive measures with regard to re-trafficking. The Committee noted the Government’s statement that there existed special assistance centres for migrant workers and that a number of centres, such as the Fishing Worker Coordinator Centres and the Fisherman’s Life Enhancement Centre (FLEC) had been established for migrant fishing workers. In addition, the Committee noted the establishment of 24-hour assistance channels that are accessible to migrant workers in their own languages, as well as the Complaint System for Foreign Workers which operates through the Internet. The Committee further noted the signing of Memoranda of Understanding (MOUs) to tackle trafficking in persons with source countries, such as Lao People’s Democratic Republic, Myanmar and Viet Nam and an agreement with the Government of Myanmar on the implementation procedure for the repatriation and reintegration of victims under the concept of safe repatriation, safe receiving and no re-trafficking. The Committee encouraged the Government to continue to take measures to ensure improved protection and assistance to migrant fisher workers so as to prevent them from falling into situations of forced labour or trafficking in persons.

The Committee notes the detailed information provided by the Government on the establishment of various service centres which provide assistance to migrant workers, including:

• -four Migrant Workers Assistance Centres aimed at upgrading the quality of life of fishery workers and providing assistance, knowledge on welfare and benefits and receiving grievances from workers;
• -Fisherman Centre established by the DLPW and the Labour Rights Promotion Network Foundation which provides assistance to foreign fishers who are victims of forced labour and other abuses;
• -Migrant Workers Protection and Monitoring Network under the Ministry of Labour’s LINE Application which sets up chat groups that assist migrant workers to reclaim wages and compensation and to advice workers on their rights under relevant provisions (currently there are 29 chat groups gathering 1,431 members);
• -PROTECT-U, a mobile application that receive reports of trafficking in persons and refers to the relevant government agencies of other service providers;
• -Joint Service Centres for Migrant Workers established in ten provinces and covering workers in 24 industrial sectors which provide advice on work-related benefits, changing employers and coordination and referral for assistance or access to their rights (from October 2018 to June 2019, the centres provided services to 31,934 migrant workers);
• -“DOE Help me”, a grievance mechanism through the website supporting six languages which provides employment and job-seeking information and receives complaints from Thai and migrant workers (from October 2018 to May 2019, the website recorded 213 grievances from workers and all the complaints received assistance); and
• -Hotline 1506 to receive complaints and grievances from migrant workers which has three interpreters.

Moreover, the DLPW has employed language coordinators and interpreters for the effective protection and assistance of migrant workers and to prevent them from becoming victims of forced labour or trafficking of persons. The number of interpreters has increased from 72 in 2016 to 153 in 2018. The Committee encourages the Government to continue to take measures to ensure improved protection and assistance to migrant fisher workers, so that they do not fall victims to forced labour or trafficking in persons. The Committee also requests the Government to provide statistical information on the number of migrant fisher workers who have had recourse to legal and other assistance from the above-mentioned assistance centres and other online grievance mechanisms.

The Committee is raising other matters in a request directly addressed to the Government.