Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 279, Novembre 1991

Cas no 1581 (Thaïlande) - Date de la plainte: 14-MAI -91 - Clos

1. 441. The International Confederation of Free Trade Unions (ICFTU), jointly with the Public Services International (PSI), the Postal, Telegraph and Telephone International (PTTI), the International Transport Workers' Federation (ITF) and the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) on behalf of their respective Thai affiliates, presented allegations of violations of trade union rights against the Government of Thailand in a communication dated 14 May 1991. The International Federation of Building and Woodworkers (IFBWW) associated itself with this complaint on behalf of its Thai affiliate in a communication dated 24 June 1991.
2. 442. The Government sent its observations on the case in a communication dated 16 September 1991.
3. 443. Thailand has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 444. In their joint communication of 14 May 1991, the complainants express concern at two laws recently passed by the military-appointed Thai National Legislative Assembly which are aimed at dissolving the more than 120 unions in nearly 65 state-owned enterprises by excluding them from coverage under the Labour Relations Act. They are barred from collective bargaining and the right to strike and would be subject to harsh penalties for union activities in such enterprises. The complainants add that the new laws were elaborated and submitted for enactment unilaterally in early 1991 by the Government without any consultations with the legitimate unions in the sectors concerned.
2. 445. They state that this move flagrantly contradicts the pledge made by the authorities at a meeting with trade union leaders on 25 February 1991 not to restrict trade union rights and activities during the martial law administration.
3. 446. Under the new legislation, more than 200,000 state enterprise workers, handling electricity, water, communications, nationalised banks, transport, including ports and the Bangkok Transit Authority, and public utilities in general will be denied the fundamental rights laid down in Conventions Nos. 87 and 98: all unions in the state-owned enterprises are dissolved (section 55 of the State Enterprise Labour Relations Act); the only alternative is to form a "state enterprise employees' association" which could not be considered as independent and representative of workers' interests; the former unions' assets must be transferred to these government-initiated associations and those which refuse to convert themselves into associations will have their funds disposed of in accordance with their by-laws or failing clauses to that effect will have them seized and transferred to charities such as the Red Cross Society (section 55).
4. 447. The complainants enclose an English translation of the State Enterprise Labour Relations Act of 15 April 1991, and of Announcement No. 54 of 28 February 1991 issued by the National Peacekeeping Council to amend the Labour Relations Act of 1975, as well as the amendment dated 12 March 1991 concerning the seeking of permission to hold union meetings and seminars, and the Labour Department announcement of 7 March 1991 to implement Announcement No. 54. This latter instrument imposes strict conditions on union advisers' or consultants' qualifications, registration, terms of office and their number. According to section 21 of the Act, in each enterprise not more than one association will be allowed, and according to section 26 only the association first applying for registration and fulfilling the legal requirements will be registered. The complainants claim that any such associations could not be considered as independent and representative because under the new Act the right to take any collective action is denied them (section 19) and they cannot hold general meetings except on official or traditional holidays (section 28). They believe that the new associations will be merely part of a mechanism through which management can receive employees' suggestions (section 18), without any genuine collective bargaining, grievance handling or other labour relations activities.
5. 448. According to the complainants, the associations thus constitute a denial of workers' rights as contained in Articles 1 to 8 of Convention No. 87 and Articles 1 to 4 of Convention No. 98. The Government's public claim that most of the state enterprises are responsible for providing essential services is incorrect and cannot be invoked to justify the denial of these basic rights.
6. 449. In addition, the associations formed under the new legislation cannot join existing national trade union centres in Thailand and it is unclear whether they can form their own national federations.
7. 450. Apart from losing their positions in the national union centres, unionists employed by state-owned enterprises will also have to relinquish their positions in tripartite bodies, such as the Advisory Board for Labour Development, the National Wage Committee, the Labour Relations Committee and the Central Labour Court. Nor can they continue to sit as associate judges in labour courts. Chapter I of the State Enterprise Employee Relations Act provides for the creation of a "State Enterprise Labour Relations Committee". Its members are to be appointed by the Minister of the Interior for periods of office of two years and not more than two consecutive terms and will not include representatives of properly established workers' organisations. It appears that out of 21 members, only five will represent labour; and yet the Committee's mandate clearly includes tasks relating to collective bargaining, grievance procedures and labour relations issues (section 11). At the enterprise level, similar duties are given to the "labour relations committee" to be established in every state-owned enterprise under equally constrained and arbitrary conditions (section 14).

B. The Government's reply

1. 451. In its letter of 16 September 1991, the Government states that it has always adhered to the ILO Constitution and is fully supportive of the fundamental principles of the ILO as enunciated in the Declaration of Philadelphia, particularly of the last paragraph of the Declaration which affirms that while the principles set forth therein are fully applicable to all peoples everywhere, the manner of their application must be determined with due regard to the stage of social and economic development reached by each people.
2. 452. The Government explains that when the Labour Relations Act became law in 1975, it covered state enterprise employees as well as other Thai workers in the private sector. Subsequent experiences indicated a need for a specific and separate legislation tailored to meet the needs of the state enterprise employees and taking into account the fundamental differences in the labour relations between the state enterprise employees and the state, and those between employers and employees in the private sector. State enterprises in Thailand are owned, subsidised, accorded tax exemptions and monopoly control by the Government since their principal purpose is to provide public services. They are therefore different from private enterprises both in structure and purpose.
3. 453. The State Enterprise Labour Relations Act was adopted in April 1991 in order to take into account these fundamental differences in structure and purpose between the state and private enterprises and to provide state enterprise employees, in the words of the Prime Minister, "with their own house; the house which is independent and, I think, it is the house within which they could live with more pride and dignity". Under the State Enterprise Labour Relations Act, the state enterprise employees still enjoy freedom of association and the right to negotiate their terms and conditions of employment as they did under the 1975 Labour Relations Act. In each state enterprise the employees can form, without governmental interference, their own association to protect and advance their rights and welfare. The new Act stipulates that there can be only one association in one state enterprise, so as to encourage solidarity and unity among the employees that would enhance their bargaining power. For in the past, the proliferation of several unions in one state enterprise prevented any single union from being able to represent the interests of all employees in that enterprise, thereby complicating the negotiating process.
4. 454. According to the Government, the state enterprise employees' associations are not prohibited, under the new Act, to form their own federations although there is not yet a legal provision for such federations to be registered. Furthermore, the state enterprise employees' associations or federations are not prohibited from affiliating with international labour organisations. In this connection, it states that the newly established employee associations of the three electricity-generating state enterprises in Thailand, of the Metropolitan Waterworks Authority, and of the National Housing Authority have continued their membership of the PSI; the employee association of the Telephone Organization of Thailand is still a member of the PTTI; the employee associations of the Government Savings Bank and the Krung Thai Bank belong to FIET; and the employee associations of the Organization of Rubber Plantations and of the Rubber Plantation Fund are part of the International Federation of Plantation Agriculture Allied Workers (IFPAAW).
5. 455. The Government states that state enterprise employees do not lose under the new Act any rights that they enjoyed under the 1975 Labour Relations Act. In both laws, for example, they are prohibited from engaging in strikes. If enterprises which are owned by the Government and subsidised by taxpayers' money to provide public services and utilities were to engage in strikes or help private sector trade unions go on strike, there would be negative reactions by the Thai public, as has already occurred in the past. The state enterprise employees' associations, however, are not prohibited under the new Act from providing assistance to private sector trade unions on welfare and educational matters. The new Act also does not prohibit the state enterprise employees who have been asked by the private sector employees to be members of the various tripartite bodies (such as the National Advisory Council on Labour Development, the Wages Commission and the Labour Court) from joining these bodies.
6. 456. In case of a possible partial or full privatisation of state enterprises in the future, the employees in those enterprises which are fully or partially privatised to the extent that the Government no longer holds majority shares (51 per cent) will automatically come under the coverage of the Labour Relations Act instead of the State Enterprise Labour Relations Act of 1991.
7. 457. One principal reason for the new Act was the slowness of decision-making in cases of complaints and financial demands of the state enterprise employees. Under the Labour Relations Law, all state enterprises' demands or complaints with financial implications cannot be decided by the Labour Relations Committee at the national level, but must be submitted to the Ministry of Finance for consideration because they involve the Government's budget. This procedure not only slowed down the decision-making process but also did not facilitate participation by the state enterprise employees' representatives in the decision-making in all matters affecting them, in particular those having financial implications. The new Act speeds up the decision-making process and allows the representatives of state enterprise employees to participate in this process at the highest level through a national committee, called "The State Enterprise Labour Relations Committee". It is established to be the final decision-maker and arbitrator concerning all their demands and complaints. It will consist of representatives of the Ministry of Finance (namely its Permanent Secretary and Comptroller-General) and has power to make decisions on matters with financial implications without having to submit them to the Ministry of Finance as was previously the case. Since the state enterprise employees are represented by five of their colleagues on this Committee, they now, for the first time in history, participate in decision-making on all their demands and complaints. Furthermore, if the state enterprise employees were to be dissatisfied with the decision of this highest-level Committee, they could take their case to the courts of law.
8. 458. The Government states that the new Act, in addition to facilitating participation by the state enterprise employees at all levels of decision-making in all matters that affect them, seeks to encourage the greatest number of employees to become involved in this decision-making process. Consequently, the Act stipulates that the members of the labour relations committee shall hold office for a term of two years and may be reappointed, provided that they shall not hold office for more than two consecutive terms. Likewise, the members of the State Enterprise Labour Relations Committee shall hold office for a term of two years and no more than two consecutive terms. These provisions are aimed at preventing a monopoly of these offices by certain employees or group of employees and at encouraging the widest participation of the employees in these offices representing their interests.
9. 459. The new Act also seeks to ensure the continuity in the operations of representing the interests of the state enterprise employees during the transitional period of transformation of the state enterprise unions into state enterprise employees' associations. It does this by stipulating that if there is property remaining after liquidation of state enterprise unions, that property shall be transferred to the association formed in that state enterprise, or the property shall be transferred to any other juridical persons as prescribed in the rules of the union concerned if the transfer of property to the association cannot be completed within one year as from the date of completion of liquidation. However, if there is no such rule or where the regulation does not specify any juridical person to be the recipient of the remaining property, the Act requires the property to be transferred to the Red Cross Society.
10. 460. The Government adds that Announcement No. 54 of the National Peacekeeping Council amends the 1975 Labour Relations Act as follows:
    • - it requires consultants of employers or employees who are involved in negotiations over employment conditions to meet qualifications set by and to be registered with the Director-General of the Labour Department. This measure is to prevent unqualified consultants from politicising the technical negotiations;
    • - it requires that a strike can be called only after secret votes from all of the union members are taken and where more than half of all union members vote in favour of the strike. This stipulation is to ensure that the decision to strike which affects all union members is arrived at in a democratic and rational manner instead of being taken by a few members whose views may not reflect the will of the majority of the union members
    • - it mandates that board members of employers' association, or federation or congress as well as board members of employees' union or federation or congress who have been dismissed by the Registrar due to their violations of the Labour Relations Act, would have to wait one year after their dismissals before they can become board members again. This measure is aimed at providing a waiting period for the dismissed members to reform themselves before they can participate in labour activities again. 461. The Government adopted the State Enterprise Labour Relations Act of 1991 because it had found after 16 years of coverage of state enterprise employees under the Labour Relations Act that the latter law was inappropriate for such employees. This is due to fundamental differences in purpose and structure between state enterprises and private firms, as well as in the labour relations between the state enterprise employees and the state and those between employers and employees in the private sector. The Government believes that sufficient time should be given for this new Act to be tested in actual practice before judgement is passed on it. At present, the implementation of the Act is going on. Forty-two groups from 36 enterprises had filed applications under it to form their corresponding employee associations. Thirty-two state enterprise employees' associations have already been registered as of 31 August 1991. Furthermore, these employees' associations have already selected five representatives to be members of the national level State Enterprise Labour Relations Committee which has already met twice. The Government is monitoring the implementation of the Act to see if further improvements or new amendments are needed. In this connection, it would welcome the advice and technical assistance from the ILO as it seeks to uplift the lot of all Thai workers, whether they be state enterprise employees or private sector workers.

C. The Committee's conclusions

1. 462. At the outset, the Committee must explain, in reply to the Government's comment concerning the application of the principles on freedom of association based on the level of social and economic development, that trade union rights, like other basic human rights, should be respected no matter what the level of development of the country.
2. 463. The Committee notes with regret that the State Enterprise Labour Relations Act, enacted on 15 April 1991, gives rise to numerous serious problems of compatibility with the ILO's principles on freedom of association, both from the point of view of the right to form and join organisations of a public enterprise employee's own choosing, the right to collective bargaining and the right to promote and defend workers' interests through strike action. In particular, the Committee expresses its concern over the following facts: the administrative dissolution of trade unions; the obligation to establish one employees' association per enterprise; the transfer of union assets, in some cases, to the Thai Red Cross Society; the impossibility of such associations to affiliate to national federations; strict control by the Interior Minister and the Registrar over the creation and functioning of the new associations; absence of genuine bargaining; the unfair composition of the national level State Enterprise Employee Relations Committee; and the total ban on strikes in state enterprises.
3. 464. The Committee notes that the complainants also raise doubts that unionists will lose their seats on various tripartite bodies. In view of the Government's direct denial and lack of supporting detail from the complainants on this allegation, the Committee considers that this need not be examined at this stage.
4. 465. The Committee has taken account of the Government's justifications for promulgating the Act: that the special circumstances prevailing in state-owned enterprises required handling of industrial relations through an Act other than the Labour Relations Act which covers the private sector; that the new Act still allows freedom of association through the employees' associations and collective bargaining through the activities of these associations; that although there is no legal regulation, these associations are not prohibited under the Act from forming their own federations and have in fact maintained international affiliation (to the PSI, PTTI and FIET, complainants in this case, and IFPAAW); that strikes by state enterprise workers were banned anyway under the Labour Relations Act; that upon privatisation planned for the future, affected employees will return to coverage under the Labour Relations Act; and that the new Act improves (by accelerating and involving better participation) the procedure for taking decisions having financial implications for the Government's budget.
5. 466. On the question of the unions' assets, the Committee notes the Government's explanation that the Act seeks to ensure continuity of operations during the "transformation of state enterprise unions into employees' associations" by ordering the transfer of their assets to the newly formed association, or if such a transfer cannot be effected within one year, the assets shall devolve to the juridical person so stipulated in the concerned union's rules and where there is no such stipulation, the property shall vest in the Red Cross Society.
6. 467. The Committee also notes the Government's explanations of the second enactment, Announcement No. 54 amending the Labour Relations Act, to the effect that such measures were required to prevent unqualified consultants from politicising the technical negotiations, to provide a waiting period for dismissed union members "to reform themselves" before they can participate in labour activities again, and to ensure that strikes are not called by a few union members whose views may not reflect the will of the majority.
7. 468. The Committee also notes that the Government provides figures concerning the implementation of the new Act: 32 state employees' associations have already been registered, and 42 groups from 36 enterprises have filed applications for registration. These figures, and the Government's arguments summarised above, do not sway the Committee's view of the new Act and Announcement No. 54 since, as will be elaborated below, the clear wording of the texts has an immediate negative effect on the rights of workers in the sector concerned.
8. 469. Examining first the dissolution of trade unions in state-owned enterprises under section 55 of the Act, the Committee notes that it reads:
   • All the labour unions of state enterprises formed under the Labour Relations Act shall cease to exist, except for the purpose of their liquidation.
   • If there if property remaining after liquidation, that property shall be transferred to the association formed in the state enterprise pursuant to this Act. If the property transfer cannot be completed within one year as from the date of completion of liquidation, the property shall be transferred to other juridical persons as prescribed in the rules of the labour union concerned. Where there is no such rule, the property shall be transferred to the Thai Red Cross Society.
   • The Committee considers that the dissolution of trade union organisations is a measure which should only occur in extremely serious cases; such dissolutions should only happen following a judicial decision so that the rights of defence are fully guaranteed.
9. 470. However, the Committee considers that section 55 concerning the devolution of dissolved unions' assets is contrary to the principles of freedom of association. It is clear that when a union ceases to exist, its assets could be handed over to the association that succeeds it or distributed in accordance with its own rules; but where there is no such specific rule, the assets go to the Red Cross Society. In this latter situation, the Committee believes that the assets should be at the disposal of the workers concerned instead of being transferred in this way.
10. 471. On the question of the state enterprise workers' choice of organisation, the Committee notes that section 21 of the Act reads:
    • A state enterprise workers' association shall be formed only by virtue of the provisions of this Act, and shall have the following objects: (1) promotion of good relations between workers and the management, and among the workers themselves; (2) consideration of assistance to workers pursuant to their complaints concerning their rights and benefits; and (3) safeguard and protection of rights and benefits of workers.
    • There shall be only one state enterprise workers' association in each state enterprise.
    • The Committee also notes that section 46 makes it an offence, punishable by either or both of a fine of up to 1,000 baht or one month's imprisonment, for any person to conduct affairs in these enterprises in the same manner as an association without being registered under the Act. In the Committee's opinion, this restriction on the setting up of other workers' organisations in the enterprise gives rise to a situation where an individual is denied any possibility of choice between different organisations by reason of the fact that the legislation permits the existence of only one organisation in the area in which he carries on his occupation. It is thus clearly incompatible with the right of workers to establish and join organisations of their own choosing (Digest, para. 226). The same principle applies to section 26 of the Act, which stipulates that the Registrar shall register the first application for registration that is lodged and fulfils the requirements set out in the Act, on a first-come-first-served basis although a group having a larger membership and also fulfilling all the legal requirements might be simply slower in lodging its application. (See in this connection Digest, para. 229.
11. 472. A further problem with the choice in organisation lies in section 22 which requires that an association shall have a membership of not less than 30 per cent of the total number of workers in the state enterprise concerned and shall be registered. (It should be noted that, according to section 24, applications for registration can be submitted by ten founding members as long as their application is supported by at least 10 per cent of the enterprise's workers and provided that the membership reaches the 30 per cent level within the following 12 months.) The Committee considers, as does the Committee of Experts on the Application of Conventions and Recommendations, that such a high numerical requirement represents a restriction on the creation of workers' organisations in large undertakings. (See General Survey on Freedom of Association and Collective Bargaining, 1983, paras. 123 and 124.) In addition, the Act appears to give this sole right to representativity and registration in perpetuity. There is no possibility for minority groups to retain the right to represent the individual interests of their own members and they cannot challenge the first-registered association after a reasonable period, measures suggested by the ILO supervisory bodies as means of ensuring the possibility of choice (General Survey, para. 141).
12. 473. Section 23 of the Act stipulates that only persons of Thai nationality are eligible to form a state enterprise association (and a similar restriction exists in the Labour Relations Act). The Committee has always held that the right to form and join organisations of workers without distinction whatsoever means that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, political opinion and nationality, not only for workers in the private sector, but also for civil servants and public service employees in general (Digest, para. 210). Thus, although the complainants did not raise this provision when alleging violations of Article 2 of Convention No. 87 in general, it is clear that this is yet another flaw in the Act.
13. 474. As regards the right to form and join federations, the Committee notes with concern that the associations cannot join private sector federations because sections 5 and 113 of the Labour Relations Act specify that federations under that Act may only be comprised of trade unions registered thereunder. This appears to be a clear denial of the right of workers' organisations to establish federations and confederations of their own choosing (Digest, paras. 512, 513, 515 and 517). The new Act is silent as to whether the associations could form their own federations, and the Government claims that this silence means that they are not prohibited from so federating. It does not, however, state whether any such federations have been established. As for international affiliation, the Act's absence of regulation does not seem to have hindered certain state employees' associations from maintaining membership of international trade union organisations, including some of the complainants in the present case.
14. 475. Regarding the freedom to function of state employees' associations, the Committee notes that the third paragraph of section 28 of the Act reads:
    • In any case, general meetings shall be held only on official or traditional holidays.
    • In the Committee's opinion, this is a major impediment to the effective functioning of associations, which should be able to organise their operations themselves without interference from the authorities, within the limits of the law of the land where the law of the land does not amount to an obstacle to the exercise of workers' rights. This Committee has often stated that the right of workers' organisations to hold meetings freely in their own premises for the discussion of matters affecting the interests of their members, without the need for previous authorisation and without interference by the public authorities, is a fundamental aspect of freedom of association (Digest, para. 142).
15. 476. In addition, the Committee observes that under sections 25(9), 26, 36, 39(4) and 40, the Registrar has broad discretion to oversee certain internal affairs of the associations both when they seek registration or when they are trying to function. These powers cover the following situations: the right to insist that the associations' rules specify a number of committee members not to exceed 30 and that their mandates do not exceed two consecutive terms; the Registrar must be satisfied that the objects of an applicant association "are not against public order or moral" but these concepts are not defined in the Act; associations can perform certain acts (including receipt of financial assistance from non-Thai persons or groups) only when a resolution of a general meeting so authorises them; the Registrar can dissolve associations if they commit, inter alia, acts "disrupting public order or moral or endangering the national economy or security"; the Registrar can remove any committee member who carries out, inter alia, activities which violate public order or moral or endanger the national economy or security. Since the Act is silent as to whether these wide powers can be challenged before an impartial body (an appeal exists to the Minister of Labour against non-registration following a section 26 application and to the State Enterprise Labour Relations Committee against a section 40 removal from office, but whether this is impartial will be discussed below), the Committee cannot but find that the risk of abuse is not controlled in any way by the Act. It thus draws the Government's attention to the principle that organisations of workers should be able to be established and to function without previous authorisation (Digest, paras. 262 to 283).
16. 477. The Committee notes that section 19 of the Act reads as follows:
    • Workers shall not in any case stage a strike or undertake any activity in the nature of a strike.
    • It also notes that the penalties for striking under section 45 are extremely severe: up to one year's imprisonment or a fine of up to 20,000 baht (the statutory minimum wage is 100 baht per day) or both. These penalties are doubled in the case of any person who "incites, or aids and abets" a strike. This is a clear restriction on the right of workers' organisations to organise their administration and activities. The Government's argument that these enterprises provide necessary public services might prevail for certain establishments engaged in essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population, such as electricity, water and hospital workers (Digest, para. 394 and General Survey, para. 214). But in such cases the ILO supervisory bodies insist that such a restriction on the right to strike of the workers concerned should be offset by adequate impartial and speedy conciliation and arbitration procedures, in which the parties concerned can take part at every stage and whose awards should in all cases be binding on both parties (General Survey, para. 214). There are no such offsets in the Act. The Committee would also draw the Government's attention to the importance of prescribing sanctions that are proportionate to the offence involved and to the principle that there should be no punishment of imprisonment for peaceful strikes (Digest, para. 447 and General Survey, para. 223).
17. 478. On the allegations concerning the lack of collective bargaining, the Committee notes that under section 14 of the Act there shall be a labour relations committee in each state enterprise, composed of a member of the enterprise's board and equal numbers of representatives of management and of workers. Despite the Government's assertion that there will be bargaining in state enterprises, it is clear from section 18 that the role of labour relations committees is restricted merely to consulting with a view to making proposals, to considering workers' or the association's complaints and to considering the association's proposals to improve the rights and benefits of the workers. In particular, the Committee notes that if these latter mentioned proposals have financial implications, the labour relations committee must submit the results of its deliberations to the national level State Enterprise Labour Relations Committee for prior approval. In addition, according to section 18, paragraph 3, proposals reached by labour relations committees must also be submitted to the decision-maker in the enterprise and to the relevant Ministry "to take final actions". This clear lack of autonomous decision-making power is contrary to the promotion of voluntary negotiation of workers' terms and conditions of employment as envisaged in the ILO principles of free collective bargaining.
18. 479. Regarding the allegations concerning the State Enterprise Labour Relations Committee itself, the Committee observes that it is chaired by the Minister of the Interior, and is composed of five government officials (being the aforementioned Minister, the Permanent Secretaries from the Ministries of Finance and Interior, the Comptroller-General and the Director-General of the Department of Labour), five "experts" appointed by the Government, five representatives of state enterprise managements, five workers' representatives and the Chief of the Office serving the Committee who also acts as its secretary. As pointed out by the complainants, such a pro-employer weighting cannot ensure balanced debate of issues affecting the workers' interests. As for the Government's claim that this new system will improve worker participation and speed up the decision-making process since negotiations will be with those who have the power to make the final decision, the Commitee considers that the terms of the legislation do not support this. Under section 11, the functions of the State Enterprise Labour Relations Committee include: (1) to determine the standards of the rights and benefits of state enterprise workers; (2) to consider and approve the deliberations of the labour relations committees under section 18; (3) to give rulings on appeals against removal from office made under section 41. And it is clear from section 11, paragraph 2, that Cabinet has the final say in determining the conditions of employment and benefits of state enterprise workers. That provision states:
    • The standards of benefits and rights under (1) shall, on their approval by Cabinet, be applicable to every state enterprise.
    • and for labour relations committee proposals having financial implications the same provision states:
    • The consideration under (2) shall take into account the standards under (1).
    • The Committee thus concludes that the enterprise-level committees cannot engage in meaningful negotiations and that the State Enterprise Labour Relations Committee itself does not provide a balanced forum where genuine collective bargaining could take place.
19. 480. The Committee notes that the complainants refer in general terms to the Act as violating Articles 1 to 3 of Convention No. 98 concerning protection of the right to organise and against anti-union discrimination. The text addresses this issue in section 20, providing protection only against dismissal or transfer on grounds of certain types of union activity. This appears to the Committee to be inadequate since no protection against anti-union bias at the time of hiring is included, and since it does not match the substantial protection set out for private sector workers under the Labour Relations Act. There is also no penalty for breach of this section in the Penalties Chapter of the Act. The fact that the machinery to be used by an aggrieved worker is the State Enterprise Labour Relations Committee - which, as seen above, is heavily weighted in favour of the state as the employer - does not inspire the Committee's confidence that complaints of this nature will be examined by impartial national machinery as it is required by the principles on freedom of association (Digest, para. 571).
20. 481. Lastly, the Committee observes that the changes to the Labour Relations Act introduced by Announcement No. 54 and the Department of Labour Announcement of 7 March 1991 implementing that Announcement, and thus affecting private sector workers' activities as well, were aimed at improving the quality of negotiators. Whilst it would not necessarily be incompatible with the principles of freedom of association to impose reasonable restrictions on the range of persons who can act as advisers to workers' organisations in the conduct of collective bargaining, the Committee considers that it would be necessary to exercise great care to ensure that any such requirements did not amount to an interference with trade union autonomy and the right of workers' organisations to arrange their own internal affairs. The qualifications listed in the new Announcements include, inter alia, that the person must: be of Thai nationality; be over 20 years of age; never have been insolvent, or addicted to drugs or alcohol; never have been sentenced to imprisonment (with certain exceptions); not be immoral; adhere to the faith of monarchial democracy; be an executive member of a national employer or labour centre, or if not, to have completed a government-run course; be obliged not to give advice contradicting legal provisions, good conduct of labour relations or social harmony. The Committee considers that these requirements clearly go beyond what could be considered reasonable in the context of negotiations in state enterprises and infringe the principles of freedom of association.

The Committee's recommendations

1. 482. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee notes with great concern the numerous and serious incompatibilities with the principles of freedom of association introduced by the State Enterprise Labour Relations Act and the ministerial Announcements of 1991, in particular the automatic dissolution of existing unions in state enterprises, the restrictions on the establishment and functioning of the "associations" intended to replace them and the limitations on their free collective bargaining.
   • (b) The Committee urges the Government to take measures to repeal the Act and amend the Announcements without delay, so as to restore the position of the trade unions which have been dissolved and to return their assets to them.
   • (c) The Committee asks the Government to keep it informed of the steps taken to implement these recommendations.