The law, including related regulations and statutory instruments, allows private sector workers to form and join trade unions of their choosing without prior authorization, but it does not allow civil servants, including public schoolteachers, soldiers, and police, to form or register a union. By law civil servants may form and register associations, but these associations do not have the right to bargain collectively.
State-owned enterprise workers by law have the right to form unions. Noncitizen migrant workers, whether registered or illegally present, do not have that right nor the right to serve as union officials, but registered migrants may be members of unions organized and led by Thai citizens. The law restricts affiliations between state enterprise unions and private sector unions.
The law prohibits antiunion actions by employers, but this protection does not apply until the union is registered. To register a union, at least 10 workers must submit their names to the Department of Labor Protection and Welfare, which verifies the names with the employer, potentially exposing the workers to retaliation before registration is complete. Additionally, the law requires that union officials be full-time employees of the company or state enterprise. The law prohibits permanent union staff, thus limiting the ability of unions to organize in depth and be politically active. Employers may dismiss workers for any reason, provided severance payment is made. The law does not provide for reinstatement, but a court decision may allow for employee reinstatement and compensation of salary for losses while absent from work. For example, three labor leaders, whom Yum Restaurants International (Thailand) fired for organizing a union, returned to work in December 2011 as a result of a Labor Relations Committee (LRC) reinstatement order. However, during the year the company appealed to the Central Labor Court and reportedly transferred the three individuals to different jobs, where they were isolated from coworkers. At least one of the three resigned.
The law permits workers to strike after an employee has submitted a demand resulting in a deadlock between the employer and employee. Workers must submit a letter of notification at least 24 hours in advance. The government has the authority to restrict private sector strikes that would affect national security or cause severe negative repercussions for the population at large, but it seldom invoked this provision and did not do so during the year.
The law forbids strikes in “essential services,” which are defined more broadly than they are under International Labor Organization (ILO) criteria and include sectors such as telecommunications and public transportation. The law prohibits the termination of employment of legal strikers, but employers are permitted to hire workers to replace strikers. Strike action in the private sector was constrained by the legal requirement to call a general meeting of trade union members and obtain strike approval by at least 50 percent of all union members.
The law provides for the right of private sector citizen workers to organize and bargain collectively and defines the mechanisms for collective bargaining, government-assisted conciliation, and arbitration in cases under dispute.
Labor law enforcement was inconsistent and in some instances ineffective in protecting workers who participated in union activities. For example, even when labor courts ordered employee reinstatement when dismissal resulted from union activity, the process was lengthy and costly for the employee. Most cases were settled out of court through severance payments to the employee with no effective punishment of the employer.
A system of labor courts exercised judicial review over most aspects of labor law for the private sector. The Ministry of Labor reported that 20,847 charges were referred to the court of first instance, the Central Labor Court, in 2011; most conflicts involved dismissals, violations of law, and working-condition agreements. According to the Supreme Court, approximately 1,100 new labor case appeals were submitted during the year. Due to the backlog of more than 2,166 cases from the previous year, in which only 257 cases were adjudicated, more than 3,000 cases awaited a court decision as of the end of 2011.
Problems of collective labor relations were adjudicated through the tripartite LRC and were subject to labor court review. Workers may also seek redress through the NHRC. In private sector labor disputes that cannot be resolved through negotiation or voluntary arbitration and may affect the national economy or public order, the Ministry of Labor may refer them to the LRC for settlement but seldom used this legal authority. The State Enterprise Relations Committee handled redress of grievances for state enterprise workers. Labor leaders generally were satisfied with the treatment that their concerns received in these forums, although they continued to complain that unjustly dismissed union leaders were awarded only back wages with no punitive sanctions against the employer, thus failing to dissuade employers from illegal actions.
A substantial number of migrants worked in factories near border-crossing points, where there were frequent reports of law violations and few labor inspections. Labor inspectors generally could not speak the languages of migrant workers, which hampered the ability of migrant workers to report violations. During the year the Ministry of Labor reported establishing a center with an interpreter in each of the following 11 provinces with significant migrant-worker populations: Samut Sakhon, Kanchanaburi, Chonburi, Rayong, Chiang Mai, Khon Kaen, Trang, Phuket, Ranong, Songkhla, and Tak. Unionization rates were generally low in industries that employ migrant workers. In a small number of cases, documented migrants did join unions run by Thai nationals, but language barriers and the segregation of Thai and migrant workers by industry limited the impact of these unions on the migrant labor force.
Labor activists and some civil servants interpreted the constitution as broadening the freedom of association to include granting civil servants the right to form a union, and a small number of civil servants attempted to organize a union in 2011, but the law continued to prohibit civil servant unions.
The law constrained the capacity and sustainability of unions by forbidding them from having their own experts or staff members present in negotiations with employers. The law allows only two government-licensed outside advisers to assist a union in collective bargaining. Since unions must use advisers the employer deems acceptable, in practice employers had the freedom to choose their advisers at the collective bargaining table, but labor unions did not. Union leaders and outside observers noted that this interfered with the ability to negotiate, train union members, and develop expertise in collective bargaining and that it contributed to rapid turnover in union leaders.
During 2011 the Department of Labor Protection and Welfare reported 179 informal conflicts between employers and employees involving 103,594 employees: Of these, 138 conflicts were resolved without walkouts, six were referred to a labor court, and 20 continued under the department’s process. The department also reported 110 formal labor disputes, a significant increase from 66 in 2010, and eight lockouts with six strikes that involved 1,523 employees. Most disputes were related to wages and other benefits.
Employers continued to discriminate against workers who sought to organize unions. While the law protects workers who submit demands relating to working conditions, it does not protect workers from employer reprisal for union activities prior to a union’s registration. There were also cases reported of employers dismissing workers from their jobs for engaging in union activities. In some cases the labor courts ordered workers reinstated if the grounds for their dismissal were proven unlawful. However, there were cases reported of reinstated union workers being transferred to a different job or an inactive position or placed in training, rather than being allowed to continue in their previous position.
Labor activists said the requirement for half of union members to approve labor actions sets a high barrier against conducting a legal strike. Some employers used unfavorable work assignments and reductions in work hours and bonuses to punish strikers. According to the ILO, the law provides penalties, including imprisonment and possible compulsory labor, for strikers in state-owned enterprises.
As of year’s end the Supreme Court of Justice continued to consider the appeal by the State Railway Workers Union of Thailand of the July 2011 ruling by the Central Labor Court. The ruling upheld the request of State Railways of Thailand (SRT) to dismiss seven union leaders who had organized a work stoppage to protest unsafe locomotives after a crash in Prachuap Khiri Khan Province in 2009 resulted in seven fatalities. On March 26, the Central Labor Court dismissed the SRT’s 70 million baht ($2.3 million) damage claim against the union leaders, and the SRT’s appeal continued at year’s end.
Labor brokerage firms use a “contract labor system” under which workers sign an annual contract. Although contract laborers performed the same work as direct-hire workers, employers often paid them less and provided fewer, or no, benefits. By law businesses must provide contract laborers “fair benefits and welfare without discrimination.” Regardless of whether the contract labor employee was outsourced and collected wages from a separate company, by law the contracting business is the overall employer, and the law requires equal pay and benefits for subcontract and regular employees. Nonetheless, there were reports during the year of a canned fruit and juice company that made unlawful deductions from migrant worker wages to repay the costs of smuggling, registration, and permits. Workers also reported several other violations by contractors, including failure to pay holiday overtime; provide equipment, uniforms, or adequate drinking water; or pay daily minimum wages for less than eight hours of work. Workers further reported deductions from wages for sick leave absences and bribes to government officials to ignore undocumented workers.
Legal definitions of who may join a union (“employees working for the same employer” or “employees in the same description of work”) and requirements that the union represent a certain percentage of the workforce could combine to hamper collective bargaining efforts if contract workers, who made up a substantial portion of the workforce, were not considered part of the potential bargaining unit. Because the law classifies contract workers as working in the “service industry,” as opposed to the “manufacturing industry,” they may not join an industrial union. This restriction on joining with full-time employees of industries often diminished the ability to bargain collectively as a larger group.