Allegations: The complainant organizations allege anti-union dismissals against
six State Railway Workers’ Union of Thailand (SRUT) Hat Yai branch committee members and
seven SRUT leaders for their part in the occupational health and safety initiative launched
after the Hua Hin rail disaster and the imposition of penalties for conducting an industrial
action. They add that the conduct of the State Railway of Thailand (SRT) and other official
institutions exposes a number of failures in Thai law to protect the rights of workers and
trade unions, which is not consistent with the principles of freedom of association as set
out in Conventions Nos 87 and 98
- 575. The complaint is contained in a communication from the State Railway
Workers’ Union of Thailand (SRUT), the State Enterprises Workers’ Relations
Confederation (SERC), the International Transport Workers’ Federation (ITF), and the
International Trade Union Confederation (ITUC), dated 30 April 2013.
- 576. The Government forwarded its response to the allegations in a
communication dated 11 March 2014.
- 577. Thailand has not ratified the Freedom of Association and Protection
of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98).
A. The complainants’ allegations
A. The complainants’ allegations- 578. In a communication dated 30 April 2013, the complainant
organizations the SRUT, the SERC, the ITF and ITUC allege the failure of the Government
to adequately respect the rights of trade unions, their leaders and members in
accordance with the principles of freedom of association, as set forth in ILO
Conventions Nos 87 and 98. They assert that the conduct of the State Railway of Thailand
(SRT) and other official institutions in the dispute that prompted this complaint
exposes a number of failures in Thai law to protect the rights of workers and trade
unions, for which the Government is responsible as a member State of the ILO. While
Thailand has not ratified Conventions Nos 87 and 98, it is within the mandate of the
Committee to determine whether any given legislation or practice complies with the
principles of freedom of association, irrespective of whether the country concerned has
ratified these Conventions.
- 579. On that basis, the complainants believe that the conduct of the SRT
raises serious questions of compliance with respect to measures designed to: (i) protect
trade unions so that they are able to freely organize their activities and formulate
their programmes without restrictions or impediments on the lawful exercise of these
rights; (ii) protect trade unions in their efforts to further, and defend, the interests
of workers; and (iii) protect workers from acts of anti-union discrimination.
- 580. The complainants describe the SRT as Thailand’s state-owned surface
rail operator, which was founded in 1896 and is operating all of Thailand’s national
rail lines (4,070 km of track). Before 1998, it employed more than 20,000 workers,
whereas as of 2012, it employs only 11,000 regular and 4,000 temporary workers. The
downsizing of the railway workforce was the result of the July 1998 Cabinet Resolution
which stipulated that the SRT shall not employ more than 5 per cent of those reaching
the mandatory retirement age in each year.
- 581. The complainants report that before 2009, the Government paid scant
regard to the national railways, with little or no infrastructure or technical
investment being made. For example, one of the SRUT’s main health and safety concerns
was the use of outdated manual signalling systems. As of 2009, the existing stock was
more than 25–30 years old, with the last locomotive being purchased in 1995, and only 20
of 170 locomotives being equipped with dead man’s switches and vigilance control
equipment.
- 582. With respect to the SRUT, the complainants state that the history of
the railway workers’ movement in Thailand goes back to 1957 when the first trade union
was formed and dissolved one year later. After many years of lack of freedom of
association and assembly in Thailand, an international outcry over government
repression, involving the imprisonment and killing of trade union leaders in 1970, led
to the introduction of a limited set of labour rights and the emergence of the railway
workers’ associations, which have been at the forefront of the democracy movement ever
since and were successfully merged into one National State Railway Association in 1991.
This organization was transformed into the SRUT after the adoption in 2000 of a new
labour law allowing the establishment of trade unions in the public sector. Today, the
SRUT represents 11,000 members in all categories and regions of the Thai national
railways. These rail workers are covered by a collective bargaining agreement between
the SRUT and the SRT (first signed in 1975 between the railway workers associations and
the SRT). The SRUT has been involved in all the relevant committees and represented
workers in many decision bodies of the SRT, including its bipartite labour relations
committee (Relations Affairs Committee (RAC)). Nationally, the union is affiliated to
the SERC where it has played a leadership role. Founded in 1980, the SERC brings
together 45 public sector unions (70 per cent of organized labour in the public sector)
and joined ITUC in 2008. Internationally, the SRUT has been an affiliate of the ITF
since 1989.
- 583. The complainants indicate that, on 5 October 2009, the SRT Train No.
84 derailed at Khao Tao station in the Hua Hin district of Prachuap Kiri Khan Province,
Thailand, killing seven people, following similar derailments earlier that month in the
western Kanchanaburi Province (passenger train) and northern Bangkok (freight train).
The official accident investigation report states that the train driver fell asleep, or
became unconscious, immediately prior to the derailment; the cause of the fatal accident
was therefore put down to driver negligence. According to the complainants, the report
also contains statements of the train driver and engineer that the locomotive’s dead
man’s switch and vigilance control equipment were broken and that the smoke which
continuously drifted into the control room made the train driver unconscious.
- 584. The complainants state that, on 13 October 2009, the SRUT called a
meeting of its executive committee and subcommittees, from all of its nine provincial
branches, to discuss the deteriorating occupational health and safety situation on SRT
trains. Aware that the SRUT was prohibited from taking strike action under Thai law, it
was agreed by the SRUT leadership that the best strategy would be to call on the SRT to
abide by its occupational health and safety obligations under the collective bargaining
agreements (CBAs) signed between the SRUT and the SRT (hereafter the Occupational Health
and Safety Initiative).
- 585. The complainants cite the relevant provisions in the CBAs as
follows: “The SRT shall fix equipment that plays a key role in providing for the safety
of locomotives and their attached carriages and shall ensure that all locomotives and
carriages are in perfect working condition before bringing them out for operation” (2001
CBA). “The SRT shall check and fix all equipment on all of its locomotives, carriages
and bogies to ensure that they are in perfect working condition before bringing them out
for operation” (2002 CBA). The latest CBA between the SRUT and the SRT confirmed that
the above provisions continued to be in force.
- 586. The complainants indicate that, on 14 and 15 October 2009, the SRUT
issued press releases calling for the commencement of the Occupational Health and Safety
Initiative and maintaining in the strongest terms that any faulty locomotive which
failed to be in sufficient repair should not proceed into service as per the CBAs. In
response to the SRUT’s plea, approximately 1,200 SRUT members (600 “sets” composed of a
driver and a technician) refused to drive trains that had faulty dead man switches or
vigilance control equipment.
- 587. According to the complainants, the SRT responded to the press
releases by issuing an order setting out procedures to be followed should workers
determine that locomotives were not in working order and providing that notices should
be placed on two sides of the driver’s carriage, warning them to drive with additional
caution should the dead man’s switch and/or vigilance control equipment not be working
properly. On 16 October 2009, the SRUT condemned the SRT order in a press release
arguing that the dead man’s switch and vigilance control equipment were crucial for
ensuring passenger safety, vital for preventing accidents and considered to be essential
in most other countries and pointing to an earlier SRT order barring workers from
tampering with the said devices at the risk of heavy disciplinary sanctions. Between 22
and 26 October 2009, the police were called to the Hat Yai railway station and depot to
maintain calm and order.
- 588. The complainants add that, on 28 October 2009, an agreement setting
out plans to form a committee to investigate safety conditions on SRT trains was signed
between the SRUT, the SRT, high government officials and police and army
representatives. Despite the SRT’s initial contention that the SRUT had prevented the
proper functioning of the Thai railway system during the Occupational Health and Safety
Initiative, it was conceded that the SRUT had not done so, but simply instructed its
members to wait for any faulty safety equipment to be fixed before proceeding to drive
the trains in question.
- 589. The complainants allege that, nonetheless, the SRT dismissed the six
following committee members of the SRUT Hat Yai branch for their involvement in the
Occupational Health and Safety Initiative (dismissal orders of 27 October 2009): (i) Mr
Wirun Sagaekhum, locomotive driver 6 and the President of the SRUT Hat Yai branch; (ii)
Mr Prachaniwat Buasri, locomotive driver 6 and the Vice-President of the SRUT Hat Yai
branch; (iii) Mr Sorawut Porthongkham, technician 5 and registration officer of the SRUT
Hat Yai branch; (iv) Mr Thawatchai Bunwisut, technician 5 and labour relations officer
of the SRUT Hat Yai branch; (v) Mr Saroj Rakchan, technician 5 and public relations
officer of the SRUT Hat Yai branch; and (vi) Mr Nittinai Chaiphum, station master and
academic officer of the SRUT Hat Yai branch.
- 590. The complainants further indicate that, on 15 January 2010, the
national tripartite State Enterprise Labour Relations Committee (SELRC) ordered the SRT
to reinstate the six workers. The SRT appealed the reinstatement order to the Thai
Labour Court. On 17 December 2010, the National Human Rights Commission of Thailand
(NHRC) found the SRT to have violated principles of freedom of association and workers’
rights in relation to the treatment of the Hat Yai six (NHRC report enclosed with the
complaint). The NHRC strongly recommended that the SRT comply with the tripartite
committee’s reinstatement order. On 16 March 2012, the Thai Labour Court reversed the
reinstatement order holding that the SRT did not act unlawfully in dismissing the six
workers, as they had incited unrest among SRT workers, caused damage to the employer and
staged unlawful industrial action. The SRUT has filed an appeal with the Supreme Labour
Court.
- 591. Furthermore, the complainants allege that the SRT sought the
authorization from the Central Labour Court to dismiss seven national leaders of the
SRUT who were protected from summary dismissal as members of the SRT bipartite labour
relations committee, claiming, among other things, that the union leaders breached the
provision in the Thai labour statute banning strikes in the public sector. On 28 July
2011, the Central Labour Court granted the SRT leave to dismiss the following seven SRUT
leaders for their contribution to the Occupational Health and Safety Initiative launched
after the Hua Hin rail disaster: (i) Mr Sawit Kaewvarn, SRUT President; (ii) Mr Pinyo
Rueanpetch, SRUT Vice-President; (iii) Mr Banjong Boonnet, SRUT Vice-President; (iv) Mr
Thara Sawangtham, SRUT Vice-President; (v) Mr Liem Morkngan, SRUT Vice-President;
(vi) Mr Supichet Suwanchatree, SRUT Secretary-General; and (vii) Mr Arun Deerakchat,
SRUT academic officer. The Court also ordered the seven defendants to pay
15 million Thai baht (THB) (circa US$500,000) plus 7.5 per cent annual interest accrued
from the date of filing. The SRUT has filed an appeal with the Supreme Labour Court. On
10 August 2011, the SRT issued dismissal notices to the seven union leaders and their
contracts were terminated on 25 September 2011.
- 592. The complainants also state that the SRT claimed, in a separate
suit, damages of THB87 million (circa $3 million) against the SRUT. On 26 March 2012,
the Central Labour Court dismissed the case stating that the seven union leaders were to
blame for the industrial action as they were acting in a personal capacity and that the
damages payable by the union leaders were sufficient, thereby making this suit
redundant.
- 593. The complainants report that, in 2012, Mr Kaewvarn, and other SRUT
leaders, met on several occasions with the Deputy Minister of Transport who is reported
to have shown support for the SRUT, but no measures were taken to reinstate the 13
dismissed union leaders. On 19 October 2011, the seven dismissed SRUT leaders appealed
for reinstatement to the SRT independent board, which responded in the negative,
affirming that the appeal was unjustified. Since the end of 2011, the SRUT also sought
the re establishment of the SRT bipartite labour relations committee, but the then SRT
Governor showed no interest in doing so. In late 2012, a new Minister and Deputy
Minister for Transport were appointed, together with a new SRT Governor. On 15 February
2013, the SRUT leadership met with the new Ministers and Governor, raised the issue of
reinstatement and was told to discuss directly with the Governor. On 28 March 2013, the
bipartite labour relations committee was reconvened under the tutelage of the new
Governor. While general labour relations issues were discussed, no time was spent on the
issue of reinstatement of the 13 dismissed union leaders.
- 594. In terms of international mobilization in support of the SRUT
Occupational Health and Safety Initiative, the complainants indicate that an ITF safety
mission, composed of the ITF railway workers’ section chair, six delegates from various
countries, as well as representatives from the ITF, visited Thailand from 12 to 15
January 2010, to investigate the dismissal case and study safety standards in Thai
railways. Meetings were held with the SRUT, other ITF Thai affiliates, the SRT Deputy
Governor, officials at the ILO Bangkok Office, the Labour Minister and the SERC national
labour centre. The delegation visited SRT worksites in Bangsue, Makkasan and Hat
Yai.
- 595. According to the complainants, the ITF mission concluded that the
Hat Yai dismissal case was “motivated to stop the union from taking further action where
the justification of the dismissals was made-up after the SRT took such action”. The ITF
mission observed that although the workers were dismissed based on a SRT report that
cited that a senior staff manager had witnessed their wrongdoings to interrupt the
operation of the railways, the report failed to stipulate the name of the witness or the
specificities of such action. After observing the safety standards in the workplaces
they visited, the delegation also felt that the Government and the management had failed
to invest in the railways for many years. It was noted that the locomotives were in a
general poor condition caused by lack of maintenance; and that the locomotive drivers
who had been interviewed during the visit confirmed that the safety device – the “dead
man’s control” – was not in order on several locomotives, albeit a very important
barrier against human error and mandatory in most parts of the world in general; there
are severe penalties for driving without a functional safety device. A member of the ITF
safety mission stated that it was a shock to find a First World country operating
locomotives without operable vigilance devices, boarded-up windows and other mechanical
defects on the locomotive; that a locomotive in such a condition would not be permitted
to enter operating service in his country; and that to find that workers were dismissed
for expressing concern, and subsequently refusing to take the locomotives into
revenue-earning service owing to their concerns for public safety, is of equal
concern.
- 596. The complainants report that, since 2009, the ITF has also asked its
affiliates to support the railway workers and their union, the SRUT, in Thailand.
Activities have included: delegation visits to Thailand to express solidarity with the
union; meetings with Thai Embassy officials to discuss the case; submission of motion to
relevant Parliament; protest outside the Thai Embassy; submission of protest letters to
the Thai Embassy; and messages of solidarity to the SRUT. ITF meetings have also
expressed their concern over the situation in Thailand by adopting emergency motions in
solidarity with the SRUT. On 20 June 2012, an ILO–SERC seminar on the “Real situation of
health and safety rights at work of Thailand labour” took place in Bangkok seeking to
create awareness about the Occupational Safety and Health Convention, 1981 (No. 155),
(OSH); and to initiate cooperation between the Government, employers and workers for
improvement in the OSH standards at railways. Prior to, and following, the ITF Safety
Mission in 2010, the ITF has written to the Thai Government and the railway company on
numerous occasions. In March 2012, the ITF wrote to the newly-appointed Minister of
Transport, who responded in August 2012, confirming that he had assigned the SRT to
undertake a thorough consideration of the matter and to report back to the
Ministry.
- 597. According to the complainants, despite the dismissal of 13 union
leaders, the SRUT Occupational Health and Safety Initiative was successful, since the
Government agreed to recruit 171 graduates from the country’s Railway Technical School
in November 2009, and to allocate almost THB200 billion (circa $6.5 billion) to improve
rail infrastructure (THB176 billion has so far been allocated); the Government also
approved the SRT’s plan to employ 2,438 new staff on 17 April 2012, with the recruitment
process currently under way.
- 598. The complainants indicate that the Thai Constitution specifically
provides for freedom of association (for all workers), although exceptions are made to
protect certain national interests: “The restriction on such liberty … shall not be
imposed except by virtue of the law specifically enacted for protecting the common
interest of the public, maintaining public order or good morals or preventing economic
monopoly.” The Constitution does not provide for the right to strike.
- 599. The complainants add that labour relations in the Thai public sector
are governed by the State Enterprise Labour Relations Act B.E. 2543 (2000) (SELRA) the
preface of which explicitly affirms the Government’s intention to jointly promote sound
labour policies and practices and Decent Work as defined by the ILO. Under section 51 of
the SELRA, employees of state enterprises, except management-level personnel, have the
right to form and join trade unions and federations and bargain collectively. Section 33
imposes a general prohibition on industrial action in the public sector. Section 77
stipulates penalties for such strike action: up to one year of imprisonment or a fine,
or both, for participation in a strike; and up to two years of imprisonment or a fine,
or both, for its instigation. The SELRA contains the following anti-union discrimination
provisions (sections 35 and 58, respectively):
- An Employer is
prohibited to dismiss or commit any act which may result in an Employee’s inability
to continue working because of his proceeding to establish a Labor Union, Labor
Federation, or being the member of a Labor Union, Labor Federation the relations
affairs committee, Committee or subcommittee of the State Enterprise Labor Relations
Committee, prosecution proceedings, being witness, or rendering evidence to
Competent Officers, the Registrar, the Committee, or the Labor Court against the
Employer;
- …
- When the Labor Union
acts for the benefit of its members, the Employee of the Labor Union, the committee
member of the Labor Union, subcommittee member, and the staff of the Labor Union,
the subcommittee member, and the staff of the Labor Union, shall be exempted from
criminal or civil charges or action, upon the participation in the negotiation for
the settlement on the demand on Conditions of Employment with an Employer and the
explanation or the publication of the facts concerning the demand or the Labor
Disputes or the operation of the Labor Union except if the activities constitute
criminal offences in the nature of offences against the public safety, life and
body, liberty and reputation, properties, and civil offences resulting from the
criminal offences thereof.
- 600. The complainants recall that, together with the other global union
federations on behalf of their respective Thai affiliates, they had previously presented
allegations of violations of trade union rights against Thailand on 14 May 1991 (Case
No. 1581). That complaint concerned two laws passed by the military-appointed Thai
National Legislative Assembly which were aimed at dissolving the more than 120 unions in
nearly 65 state-owned enterprises by excluding them from coverage under the Labour
Relations Act. Public sector workers were also to be barred from collective bargaining
and the right to strike and would be subject to harsh penalties for union activities in
such enterprises. The Committee concluded in 1991 that the legislation posed serious
problems of compatibility with the ILO principles on freedom of association, both from
the point of view of the right to form and join organizations 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. Following numerous recommendations made
by the Committee in the framework of Case No. 1581, the Government introduced the SELRA
in 2000. While noting that the SELRA permitted state enterprise employees to organize
and bargain collectively, the Committee on Freedom of Association recognized in 2002 a
number of serious inconsistencies with the principles of freedom of association, which
concern the subject matter of the present complaint, namely the general prohibition of
strikes in section 33 of the Act and the extremely severe penalties for participation or
instigation of strike action, even if it is peaceful (including one to two years of
imprisonment). In calling for the Thai Government to take the necessary measures to
amend the SELRA to bring it fully into conformity with the principles of freedom of
association, the Committee also offered it technical assistance to do so. The case was
closed in 2004. While appreciating the Government’s proposal to conduct a study on
Conventions Nos 87 and 98 with a view to enhancing the right to organize workers of all
sectors, the Committee expressed the firm hope that all the issues it had raised would
be resolved in a satisfactory manner in the shortest possible time. The complainants
also highlight that the ILO Committee of Experts on the Application of Conventions and
Recommendations and the ILO Conference Committee on the Application of Standards have
made a number of comments on Thailand’s failure to report on the application of ratified
and unratified Conventions over the past 22 years.
- 601. Therefore, in so far as the dismissal by the SRT of 13 SRUT leaders
for organizing the Occupational Health and Safety Initiative is concerned, the
complainants conclude that there has been a breach of the principles of freedom of
association as set forth in ILO Convention No. 87. The complainants contend that the
Occupational Health and Safety Initiative undertaken by the SRUT did not amount to
industrial action and was therefore not unlawful. Consequently, the dismissals of the 13
union leaders could not have been supported by national law. Moreover, the complainants
believe that, even if the Occupational Health and Safety Initiative did constitute
prohibited industrial action under national law, it is clear that Thai law is not in
conformity with the principles of freedom of association and, therefore, that the
dismissed leaders should be reinstated and the law revised.
- 602. The complainants state that, while it would appear that the
Government recognizes the right to strike for private sector workers, it clearly does
not hold the same view for public sector workers. However, the Committee on Freedom of
Association has held that the right to strike may only be restricted or prohibited in
the following cases: (i) in the public service only for public servants exercising
authority in the name of the State; (ii) in essential services in the strict sense of
the term (that is, services the interruption of which would endanger the life, personal
safety or health of the whole or part of the population); or (iii) in the event of an
acute national emergency and for a limited period of time. In the complainants’ view,
state railway employees do not count as public servants exercising authority in the name
of the State, and railway services do not constitute essential services in the strict
sense of the term. The same applies to transport services and public transport services
generally. It is evident that an acute national emergency is considered to mean a
genuine crisis situation, such as those arising as a result of a serious conflict,
insurrection or natural, sanitation or humanitarian disaster, in which the normal
conditions for the functioning of society are absent.
- 603. The complainants consider that, while the Thai prohibition on
strikes in the public sector cannot be justified by any of the reasons cited above,
there is also failure to give compensatory guarantees for workers deprived of that
right. The Committee has held that such protection should include, for example,
impartial conciliation and eventually arbitration procedures which have the confidence
of the parties. In this regard, the complainants wish to highlight the complete lack of
faith of the SRUT in the Thai national tripartite SELRC and the enterprise-level
bipartite labour relations committee. The SRUT stated that until the recent appointment
of a new Governor, the SRT failed to recognize the replacements of the seven dismissed
union leaders in the bipartite committee. This consultative mechanism was therefore
completely obsolete despite being a statutory guarantee. The complainants recall that
the Committee has held that Government intervention (not imposing a general prohibition)
on strikes in the railway services can only be justified in certain extreme situations,
for instance by establishing a minimum service.
- 604. The complainants feel that the excessive sanctions set out in
national law for workers participating in, and unions calling, industrial action, namely
up to one year of imprisonment or a fine, or both, for participation in a strike; and up
to two years of imprisonment or a fine, or both for its instigation, amount to a breach
of the principles of freedom of association. Moreover, they believe that the damages
awarded to the SRT by the Central Labour Court in the case allowing the dismissal of
seven SRUT leaders, could lead to the bankruptcy of the individuals concerned and the
dissolution of the SRUT. While the dismissed union leaders were not sentenced to
imprisonment, the threat of incarceration impacted heavily on them and the morale of
their members. The complainants consider that the sanctions imposed against the SRUT
leaders are contrary to the Committee’s principles.
- 605. The complainants also allege that Thailand has failed to protect
workers from acts of anti union discrimination, as set out in Convention No. 98, in the
sense that, regardless of questions about the legality of the SRUT’s Occupational Health
and Safety Initiative that led to the dismissal of 13 union leaders, Thai law permitted,
and still permits, dismissals of this nature.
- 606. In conclusion, the complainants believe that the conduct of the SRT,
and other official institutions, is not consistent with the requirements of Conventions
Nos 87 and 98, and that Thai law, which permits this conduct to take place, is
consequently not consistent with the requirements of the Conventions. In the
complainants’ view, the requirements of the two Conventions are not met due to the
prohibition on strikes in the public sector, excessive penal sanctions and fines imposed
on workers and unions for taking industrial action contrary to a strike ban (that is not
in conformity with ILO standards) and the tolerance of dismissals of workers and union
leaders taking strike action. The complainants feel that that the various Thai
Governments have failed to adequately implement the recommendations of the ILO’s
supervisory bodies. According to the complainants, while the enactment of the SELRA in
2000 was anticipated as a watershed moment in Thai public sector industrial relations,
the final text of the law did not come close to fully complying with Conventions Nos 87
and 98. Given the serious nature of the violations of trade union rights set out in the
present document, the complainants request the Committee to find the Government to be in
breach of Conventions Nos 87 and 98, with a view to restoring the full exercise of
freedom of association, and to call on the Government to seek the immediate
reinstatement of the 13 dismissed union leaders with full pay for back wages and
adequate compensation and to use its best endeavours to dismiss all pending cases
against the SRUT concerning the Occupational Health and Safety Initiative.
B. The Government’s reply
B. The Government’s reply- 607. In its communication dated 11 March 2014, the Government states that
the cases of the 13 SRUT leaders were in labour litigation. The SRT, the employer, and
the 13 dismissed SRUT leaders exercised their rights to fight a lawsuit in the process
of judgment. Moreover, they also exercised their rights to appeal against the judgments
of the Central Labour Court according to the Act Establishing the Labour Court and
Labour Court Procedure B.E. 2522 (1979). In the Government’s view, whether or not the
SRT order to dismiss the 13 workers was lawful, it had already been in the process of
judgment; thus, the process of judgment should continue until the Supreme Court renders
the final judgments.
- 608. The Government indicates that, in the first legal case pending
before the Supreme Court, the SRT appealed to the Central Labour Court against the Order
of the national tripartite SELRC to reinstate the six workers (Mr Wirun Sagaekhum and
his colleagues). The Court reversed the reinstatement order ruling that the workers
neglected their duties, disobeyed a lawful order of supervisors and committed serious
misconduct according to SRT regulations. Thus, the Court revoked the judgment of the
national tripartite committee. In this case, the Department of Labour, on behalf of the
national tripartite committee, authorized the prosecuting attorney to file an appeal
with the Supreme Court.
- 609. The Government adds that, in the second legal case pending before
the Supreme Court, the SRT exercised its right to ask the Central Labour Court for
permission to dismiss the RAC under the provisions of the SELRA. The Court was of the
opinion that the seven defendants encouraged and persuaded locomotive drivers,
technicians and other workers of the SRT (plaintiff), to stop their duties on trains in
order to prevent the plaintiff from operating diesel locomotives for passengers and
transportations as usual. It held that the act of the seven defendants caused damage to
the plaintiff and was in violation of sections 23 and 40 of the SELRA, as they wilfully
disobeyed the plaintiff and neglected their duties, contrary to the SRT’s regulation
(volume 35) concerning discipline and punishment of SRT’s workers (revised). The
judgment of the Court allowed the SRT (plaintiff) to dismiss Mr Sawit Kaewvam and his
six colleagues (defendants) who were officers of the SRUT under section 24 of the SELRA
and the Court sentenced the seven defendants to compensation for damages to the
plaintiff of THB15 million. In this case, Mr Sawit Kaewvarn and the six colleagues
exercised their right to appeal against the Central Labour Court’s decision according to
the Act Establishing the Labour Court and Labour Court Procedure on 6 November 2011. The
case is now pending before the Supreme Court.
C. The Committee’s conclusions
C. The Committee’s conclusions- 610. The Committee notes that, in the present case, the complainant
organizations allege anti union dismissals against six SRUT Hat Yai branch committee
members and seven SRUT leaders for their part in the Occupational Health and Safety
Initiative launched after the Hua Hin rail disaster and the imposition of penalties for
conducting an industrial action. They add that the conduct of the SRT and other official
institutions exposes a number of failures in Thai law to protect the rights of workers
and trade unions, which is not consistent with Conventions Nos 87 and 98.
- 611. The Committee notes in particular that:
- (i) considering that
the Hua Hin rail disaster of 5 October 2009 was due to insufficient safety
standards, the SRUT launched the Occupational Health and Safety Initiative calling
on the SRT to abide by its occupational health and safety obligations under the
relevant collective bargaining agreements and on its members not to work on trains
if they consider the safety equipment to be faulty;
- (ii) on 14 and 15
October 2009, in response to the SRUT’s plea, approximately 1,200 SRUT members (600
“sets” composed of a driver and a technician) refused to drive trains that had
faulty dead man switches or vigilance control equipment;
- (iii) on 27 October
2009, the SRT dismissed the six following committee members of the SRUT Hat Yai
branch working as locomotive drivers, technicians etc., for their part in the
Occupational Health and Safety Initiative: Mr Wirun Sagaekhum, President of the SRUT
Hat Yai branch; Mr Prachaniwat Buasri, Vice-President; Mr Sorawut Porthongkham,
registration officer; Mr Thawatchai Bunwisut, labour relations officer; Mr Saroj
Rakchan, public relations officer; and Mr Nittinai Chaiphum, academic
officer;
- (iv) on 15 January 2010, the national tripartite SELRC ordered the
SRT to reinstate the six workers; the NHRC also found that the SRT violated the
principles of freedom of association and workers’ rights and recommended to the SRT
to comply with the reinstatement order;
- (v) following the SRT’s appeal, the
Thai Labour Court reversed, on 16 March 2012, the reinstatement order holding that
the SRT did not act unlawfully in dismissing the six workers, as they had incited
unrest, caused damage to the employer and staged unlawful industrial action; the
SRUT has filed an appeal with the Supreme Labour Court;
- (vi) furthermore,
the SRT sought the authorization from the Central Labour Court to dismiss seven
national leaders of the SRUT who were protected from summary dismissal as members of
the SRT bipartite RAC for breach of the national law banning strikes in the public
sector;
- (vii) on 28 July 2011, the Central Labour Court granted
authorization to dismiss seven SRUT leaders for their contribution to the
Occupational Health and Safety Initiative (Mr Sawit Kaewvarn, President; Mr Pinyo
Rueanpetch, Vice-President; Mr Banjong Boonnet, Vice-President; Mr Thara Sawangtham,
Vice-President; Mr Liem Morkngan, Vice-President; Mr Supichet Suwanchatree,
Secretary-General; and Mr Arun Deerakchat, academic officer) and ordered the seven
defendants to pay THB15 million (circa $500,000) to the SRT for compensation of
damages; the SRUT has filed an appeal with the Supreme Labour Court;
- (viii)
on 10 August 2011, the SRT issued dismissal notices to the seven union leaders, and
their contracts were terminated on 25 September 2011;
- (ix) the SRT also
claimed damages of THB87 million (circa $3 million) against the SRUT, but the
Central Labour Court dismissed this suit on 26 March 2012, stating that the damages
payable by the seven union leaders were sufficient because they were to blame for
the industrial action as they were acting in a personal capacity; and
- (x)
the Occupational Health and Safety Initiative was successful as the Government
agreed to recruit 171 graduates from the country’s Railway Technical School in
November 2009, to allocate almost THB200 billion (circa $6.5 billion) to the
improvement of rail infrastructure and to approve the SRT’s plan to employ 2,438 new
staff on 17 April 2012.
- 612. The Committee regrets that the Government limits itself to brief
factual observations concerning the two legal cases pending before the Supreme Court,
and notes the Government’s view that, whether or not the SRT order to dismiss the 13
workers was lawful, it had already been in the process of judgment, and that, thus, this
process should continue until the Supreme Court renders the final judgments.
- 613. The Committee observes that the dismissal of the six workers and
branch committee members, on 27 October 2009, was wholly or partly based on section 33
of the SELRA (prohibition of strikes in the public sector). As far as the seven SRUT
leaders and RAC members are concerned, the Committee observes that the Central Labour
Court authorized their dismissal under section 24 of the SELRA due to violations of
sections 23 (functions of the RAC, including prevention of labour disputes in state
enterprises) and 40 (objectives of unions, including protection of the interests of the
state enterprise and promotion of good employer–employee relationship), which appear to
have been read in conjunction with section 33 of the SELRA.
- 614. The Committee recalls that, in the framework of a previous case
concerning Thailand, it had already noted with regret that section 33 of the Act imposes
a general prohibition of strikes [Case No. 1581, 327th Report, para. 111]. The Committee
has always recognized that the right to strike is one of the essential means through
which workers and their organizations may promote and defend their economic and social
interests. The Committee reiterates that the right to strike may be restricted or
prohibited: (1) in the public service only for public servants exercising authority in
the name of the State; or (2) in essential services in the strict sense of the term
(that is, services the interruption of which would endanger the life, personal safety or
health of the whole or part of the population). It recalls that public servants in
state-owned commercial or industrial enterprises should have the right to negotiate
collective agreements, enjoy suitable protection against acts of anti-union
discrimination and enjoy the right to strike, provided that the interruption of services
does not endanger the life, personal safety or health of the whole or part of the
population. The Committee has considered that, as a general rule, railway services do
not constitute essential services in the strict sense of the term [see Digest of
decisions and principles of the Freedom of Association Committee, fifth (revised)
edition, 2006, paras 522, 576, 577 and 587]. Considering that section 33 of the SELRA is
not in line with the principles of freedom of association, the Committee once again
urges the Government to take the necessary measures without delay to abrogate this
provision and to keep it informed of developments in this regard. Recalling that a
minimum service could be appropriate as a possible alternative in situations in which a
substantial restriction or total prohibition of strike action would not appear to be
justified and where, without calling into question the right to strike of the large
majority of workers, one might consider ensuring that users’ basic needs are met or that
facilities operate safely or without interruption [see Digest, op. cit., para. 607], the
Committee invites the Government to consider having recourse to these principles
concerning minimum services, where the scope or duration of industrial action may result
in irreversible damages. For instance, the Committee wishes to highlight that it is
legitimate for a minimum service to be maintained in the event of a strike in the rail
transport sector [see Digest, op. cit., para. 619].
- 615. In the present case, the Committee observes that the Occupational
Health and Safety Initiative launched by the SRUT in the wake of the Hua Hin rail
disaster of 5 October 2009, was aimed at denouncing and protesting against insufficient
safety standards at the SRT (a state enterprise), which had a direct impact on the
members of the railway union and on rail workers in general, with a view to ultimately
improving occupational safety and working conditions. In the Committee’s view, this
protest action amounts to industrial action within the remit of protection of the
principles of freedom of association, regardless as to whether the workers’ involvement
consists in its organization (that is, the seven SRUT leaders calling on workers to stop
duty in case of faulty safety equipment) or in active participation (that is, the six
workers and branch committee members refusing to drive defective trains). Recalling that
the dismissal of trade unionists may only be based on strike prohibitions, that in
themselves do not infringe the principles of freedom of association, the Committee
concludes that the decision to dismiss the 13 union officials has been taken as a
consequence of their legitimate trade union activities, and more specifically, of their
organization or participation in the Occupational Health and Safety Initiative of
October 2009. In these circumstances, the Committee once again recalls to the Government
that the use of extremely serious measures, such as dismissal of workers for having
participated in a strike and refusal to re-employ them, implies a serious risk of abuse
and constitutes a violation of freedom of association [see Digest, op. cit., para. 666].
The Committee trusts that the judgments in the two appeal proceedings before the Supreme
Court concerning the dismissal of the six workers and committee members of the SRUT Hat
Yai branch and the authorization to dismiss the seven SRUT leaders with imposition of
excessive fines against them, will be rendered in the near future, and urges the
Government to ensure that the Committee’s conclusions are brought to the Supreme Court’s
attention without delay and to provide a copy of the Supreme Court’s decision once it is
handed down. The Committee requests the Government to make every effort to ensure that
the 13 dismissed union officials are swiftly reinstated effectively in their jobs under
the same terms and conditions prevailing prior to their dismissal with compensation for
lost wages and benefits pending the final judgment. The Committee requests to be kept
informed of developments in this regard.
- 616. As for the sanctions imposed against the seven SRUT leaders, the
Committee notes that they are apparently based on section 77 of the SELRA. The Committee
recalls that, in the framework of a previous case concerning Thailand, it had already
noted with regret that penalties for strike action, even a peaceful strike action, are
extremely severe: up to one year of imprisonment or a fine, or both, for the
participation in a strike action; and up to two years of imprisonment or a fine, or
both, for its instigation [Case No. 1581, 327th Report, para. 111]. The Committee
recalls that penal sanctions should only be imposed as regards strikes where there are
violations of strike prohibitions which are themselves in conformity with the principles
of freedom of association. All penalties in respect of illegitimate actions linked to
strikes should be proportionate to the offence or fault committed and the authorities
should not have recourse to measures of imprisonment for the mere fact of organizing or
participating in a peaceful strike. The Committee also emphasizes that fines which are
equivalent to a maximum amount of 500 or 1,000 minimum wages per day of abusive strike
may have an intimidating effect on trade unions and inhibit their legitimate trade union
activities, particularly where the cancellation of a fine of this kind is subject to the
provision that no further strike considered as abusive is carried out [see Digest, op.
cit., paras 668 and 670]. Considering that section 77 of the SELRA is not in line with
the principles of freedom of association, the Committee once again urges the Government
to take the necessary measures without delay to amend this provision to bring it fully
into conformity with the principles of freedom of association and to keep it informed of
any developments in this respect.
- 617. Moreover, while welcoming that the enterprise-initiated claim for
damages against the union has been dismissed, the Committee notes with concern the
complainants’ indication that the court decision ordering the seven SRUT leaders to pay
damages of approximately $500,000 to the enterprise could lead to the bankruptcy of the
seven individuals concerned and the dissolution of the SRUT. Considering that the fines
against the trade union leaders have been imposed in response to violations of strike
prohibitions, which are themselves contrary to the principles of freedom of association,
and that their excessive amount is likely to have an intimidating effect on the trade
union and its leaders and inhibit their legitimate trade union activities, the Committee
trusts that the appeal filed by the SRUT has a suspensive effect with regard to the
payment of damages, and that the Committee’s conclusions on this matter are also
submitted for the Supreme Court’s consideration.
The Committee’s recommendations
The Committee’s recommendations- 618. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee once
again urges the Government to take the necessary measures without delay to abrogate
section 33 of the SELRA and invites the Government to consider having recourse to
the principles concerning minimum services enounced in its conclusions, where the
scope or duration of industrial action may result in irreversible damages. The
Committee requests to be kept informed of developments in this regard.
- (b)
The Committee trusts that the judgments in the two appeal proceedings before the
Supreme Court will be rendered in the near future, and urges the Government to
ensure that the Committee’s conclusions are brought to the Supreme Court’s attention
without delay and to provide a copy of the Supreme Court’s decision once it is
handed down. Pending the final judgment, the Committee requests the Government to
make every effort to ensure that the 13 dismissed union officials are swiftly
reinstated effectively in their jobs under the same terms and conditions prevailing
prior to their dismissal, with compensation for lost wages and benefits. The
Committee requests to be kept informed of developments in this regard.
- (c)
The Committee once again urges the Government to take the necessary measures without
delay to amend section 77 of the SELRA to bring it fully into conformity with the
principles of freedom of association and to keep it informed of any developments in
this respect.
- (d) Considering that the fines against the SRUT leaders have
been imposed in response to violations of strike prohibitions, which are themselves
contrary to the principles of freedom of association, and that their excessive
amount is likely to have an intimidating effect on the SRUT and its leaders and
inhibit their legitimate trade union activities, the Committee trusts that the
appeal filed by the SRUT has a suspensive effect with regard to the payment of
damages, and that the Committee’s conclusions on this matter will also be submitted
for the Supreme Court’s consideration.
