This record is a partial extract of the original cable. The full text of the original cable is not available.

120143Z Oct 05

UNCLAS SECTION 01 OF 03 BANGKOK 006440 
 
SIPDIS 
 
SENSITIVE 
 
PASS TO USTR - AARON ROSENBERG 
STATE FOR DRL/IL AND EAP/MLS 
DOL FOR ILAB - JIM SHEA 
 
E.O. 12958: N/A 
TAGS: ELAB ETRD PHUM SOCI TH
SUBJECT:  THAI UNIONS, LABOR EXPERTS CRITIQUE DRAFT LABOR 
RELATIONS ACT 
 
 
¶1. (U) Summary:  At an October 5 NGO-sponsored roundtable, 
12 Thai labor leaders called Thailand's draft revision of 
the 1975 Labor Relations Act (LRA) a "step backwards" for 
labor rights in this country.  U.S. labor advisers and ILO 
representatives presented a more balanced view of the LRA 
draft and urged Thai unions to work constructively on 
improving it rather than opposing it in full.  Both Thai and 
independent experts agreed, however, that enforcement of 
existing labor law is slipshod at best, and that the Thai 
government has largely ignored labor groups' opinions on how 
to improve the LRA.  ILO experts and academics believe that 
employer exploitation of migrant workers, as well as 
laborers working for company contractors or sub-contractors, 
has a significantly negative impact on labor conditions in 
Thailand.  End Summary. 
 
¶2. (U)  At an October 5 roundtable organized by the U.S.- 
based Solidarity Center (ACILS), Thai labor leaders roundly 
criticized the draft Labor Relations Act (LRA) now pending 
approval by the Cabinet of the Royal Thai Government (RTG) 
before it is to be taken up for consideration by Thailand's 
parliament.  The new LRA is the long-awaited successor to 
the original LRA of 1975.  Having stalled in Cabinet for 
several years for a variety of reasons, efforts to pass the 
Act have acquired new urgency as the RTG attempts to 
demonstrate its commitment to improving labor standards 
under a prospective U.S.-Thai Free Trade Agreement. 
 
¶3. (U)  In advance of the roundtable, ACILS advisers and top 
Thai labor lawyers circulated two separate analyses of the 
LRA draft which compared its provisions to those of the 1975 
Act.  Leaving aside the issue of enforcement, which labor 
leaders consider to be lax in Thailand, the analyses 
generally agreed on areas where the new LRA represented an 
improvement over existing legislation, areas where it was 
viewed as falling short, and areas which remained unchanged. 
These can be summarized as follows: 
 
KEY LRA IMPROVEMENTS COMPARED TO 1975 ACT 
----------------------------------------- 
 
¶4. (U) The draft LRA: 
 
-- Prohibits employers from firing employees for trying to 
organize a trade union; prohibits employers from locking out 
employees making demands on behalf of a union; and prohibits 
other arbitrary or unfair acts against union members without 
just case (Section 148(1)(5)).  (Comment: This closes a 
major loophole in current law, which allows employers to 
terminate workers without cause for "promoting a union" 
before the union has been registered.) 
 
-- Allows a union with a membership of over 50 percent of 
the employer's workforce to submit demands on behalf of all 
employees, even if multiple trade unions exist (Section 30). 
 
-- Prevents an employer or employee from presenting 
additional evidence to a Labor Court proceeding unless it 
has first been presented to the Labor Relations Committee 
(Article 152). 
 
 
KEY LRA SHORTFALLS COMPARED TO 1975 ACT 
--------------------------------------- 
 
¶5. (U) The draft LRA: 
 
-- Expands the number of business sectors prohibited from 
engaging in strikes to include: commercial banking, finance 
and security businesses, private schools and cooperatives. 
 
-- Prohibits outsiders from supporting bargaining activities 
of employees ('outsiders' being anyone not an employer, 
employee, member of an employee committee, or legal 
adviser). 
 
-- Allows employees to be a member of only one trade union 
per workplace, and prohibits them from joining or creating 
unions across different professions. 
 
-- Requires employers and employees to submit unsettled 
labor disputes to an appointed arbitrator before declaration 
of a strike (Article 41). 
 
-- Requires trade unions to provide a list of members to a 
registrar once a year, violating union confidentiality. 
 
 
KEY EXISTING PROBLEMS NOT ADDRESSED BY LRA 
------------------------------------------ 
 
¶6. (U) The draft LRA does not address the following issues 
identified as shortcomings of 1975 Act: 
 
-- Civil servants remain are prohibited from organizing 
trade unions. 
 
-- Migrant non-Thai laborers and child laborers (age 15-19) 
are not allowed to organize unions or serve as union 
officers, despite comprising a significant part of the Thai 
workforce. 
-- The Labor Law definition of employees allowed to organize 
unions excludes household workers, freelance workers and 
taxi drivers. 
 
-- The Minister of Labor has considerable power to appoint 
members of employees' committees and labor relations 
promotion committees without transparent criteria. 
 
-- The Minister of Labor has considerable power to prohibit 
strikes in any workplace (Article 63) by claiming potential 
economic damage or disturbance to the nation's peace. 
 
 
THAI LABOR LEADERS' STAND: "NO LRA, NO FTA" 
------------------------------------------- 
 
¶7. (U) While ACILS facilitators at the roundtable tried to 
generate constructive debate on required changes to improve 
the LRA, Thai labor union representatives declared they 
would rather keep the 1975 Act in place than accept a new, 
flawed LRA which they believe is being rushed to completion 
as a pre-condition to a U.S.-Thai FTA.  "We would rather 
scrap the draft LRA and start over from scratch," said the 
head of the Thai Carbon Black Workers' Union, who argued 
that the proposed LRA would give legal sanction to employer 
interference in workers' rights to representation and their 
right to strike.  Somsak Kosaisook, head of the 200,000 
member State Enterprise Relations Confederation (SERC), 
argued that the administration of Prime Minister Thaksin 
Shinawatra has refused to engage Thai labor unions on the 
LRA's provisions and is not sympathetic to labor's concerns 
in general. 
 
¶8. (SBU) Somsak noted that Ministry of Labor (MOL) officials 
refused to discuss the draft LRA at a September 28 dialogue 
between the MOL and Thailand's seven largest labor unions to 
discuss labor conditions.  He said that a forthcoming 
meeting with the MOL to discuss enforcement of minimum wage 
law was also unlikely to include the LRA as a discussion 
topic.  He further criticized the prospective FTA as an 
agreement that would only benefit U.S. corporations and the 
business interests of the Thai leadership, which he branded 
as "promoters of globalization and violators of human 
rights." 
 
¶9. (SBU) A representative from the International Labor 
Organization's (ILO) regional Bangkok office urged the Thai 
labor leaders to continue to lobby their government for 
improvements to the LRA rather than opposing its 
consideration outright.  "Your strategy is self-defeating," 
he said, "and you need to get engaged in a consultative 
dialogue with government and employers to suggest changes." 
"You've waited 30 years to reach this point," he added, "and 
if you stop the process entirely, you may have to wait 
another 30 years."  The ILO representative said that while 
he understood the Thai labor movement remained fractured and 
weak, it had a responsibility to raise labor complaints in 
ILO venues, such as the Geneva-based ILO Committee on 
Freedom of Association, and to file an annual statement with 
the ILO on the status of collective bargaining and freedom 
of association in their country. 
 
Legal Experts Cite Failure of Labor Enforcement 
--------------------------------------------- -- 
 
¶10. (U) While disagreeing with the absolutist stance of the 
Thai unions, ILO and academic experts privately concede that 
labor leaders have reason to be skeptical about the RTG's 
willingness to take their views into consideration.  An 
alternate LRA draft, proposed by unions and labor NGO's in 
response to the government's draft, has been largely 
ignored.  In 2003-04, a series of public hearings was held 
on the LRA in eight different provinces, organized by the 
Labor Committee of Parliament with the participation of key 
labor leaders and MOL officials.  The meetings generated 
much publicity and verbal commitments to cooperate, but no 
visible progress in amending the LRA draft. 
 
¶11. (SBU) In separate meetings in September prior to the LRA 
roundtable, ILO experts told Laboff that the treatment of 
migrant laborers, especially Burmese migrants, was one of 
the key labor issues in Thailand not addressed by the LRA. 
There are between 1 and 2 million migrant workers in 
Thailand, 80 percent of whom are Burmese, working largely in 
the fishing, agricultural, textiles and construction 
industries.  Under current law, legal non-Thai migrant 
workers are allowed to join unions but are not allowed to 
hold union office nor organize their own unions - a 
situation that remains unaddressed by the new LRA draft. 
Thai labor lawyers note that the Federation of Trade Unions 
of Burma (FTUB) has been struggling to organize Burmese 
migrants by having them join Thai unions, but is 
encountering opposition from those unions, as well as from 
employers, due to the language barrier as well as a 
perceived difference in interests. 
 
¶12. (SBU) In another meeting September 20, the Director of 
the National Labor Management Center, Prof. Lae 
Dilokvithayarat, told Laboff that the largest problem with 
the Thai LRA is the failure to enforce its provisions with 
companies that outsource production to less-supervised 
contractor or sub-contractor companies.  While the Ministry 
of Labor is committed to treating all employers as the same, 
there is evidence that production by major firms that is 
contracted out is subject to far less monitoring.  Laboff 
noted in a September 17-18 visit to the border province of 
Mae Sot that the contractor and migrant problems are often 
intertwined, as hundreds of small textile factories employ 
Burmese workers at wages far below the mandatory minimum of 
142 baht per day (USD 3.50) making clothes for larger firms 
in Bangkok which then apply garment labels before sale in 
local stores or, in some cases, for export shipment.  These 
provinces, the ILO and legal experts agree, are poorly 
monitored due to staffing and funding constraints in the 
Labor Ministry. 
 
¶13. (SBU) Prof. Lae also said that the LRA's improved 
protection for union promoters from arbitrary termination 
would not be fulfilled until the Thai Labor Court reduced 
the time it took to render decisions and reinstate aggrieved 
workers.  Currently, a worker who files a case of wrongful 
termination can expect an initial decision from the Labor 
Relations Committee, on whether it should forward the case 
to the Labor Court, in about three months.  Thereafter, the 
Labor Court can take from half a year to a full year to 
render its decision, which can then be appealed by the 
employer to a higher court before reinstatement is 
necessary.  All told, it is not unusual for court cases to 
last well over a year if employers seek to pursue all legal 
avenues.  In addition, the now-unemployed worker must bear 
the cost of his/her transportation to Bangkok to attend 
court hearings, assuming he/she has found and can afford a 
lawyer to take on the case.  In the meantime, said Prof. 
Lae, the worker is constantly urged by court officials and 
employers to accept a compensation package and to drop the 
case, which happens in a large percentage of situations. 
 
¶14. (SBU) Comment:  Laboff stressed in all private meetings 
and at the roundtable that the U.S. was not interested in 
dictating the provisions of Thai labor law, and that the key 
requirement for FTA labor chapters was to ensure that our 
trading partners enforced their own laws.  Each country is 
given the flexibility to implement those laws in the manner 
best suited to its capabilities.  Laboff encouraged the Thai 
labor leaders to continue efforts to engage the RTG over LRA 
provisions, and to continue their dialogue with the ILO and 
with NGOs such as ACILS.  Labor experts agree that despite 
enforcement capacity problems, addressing the migrant and 
contractor labor issues in new legislation would be a 
significant step toward improving labor standards in 
Thailand.