VII. Labor Rights Abuses

The Ministry of Labor publicly asserts that all migrants are officially protected by the labor laws—such as the Labor Relations Act of 1975 (LRA) and the Labor Protection Act of 1998 (LPA), and bilateral MOUs on migrant employment between Thailand and its neighbors Burma, Cambodia, and Laos—and that all labor laws apply equally to migrant workers. However, the labor law excludes domestic workers, one of the major sectors for employment for female migrants.

Furthermore, as we have seen, the migrant registration scheme compels workers to remain with the employer who legally registered them. Migrant workers who lose their jobs, or are found to be working for an employer for whom they are not registered, become liable to immediate arrest and deportation.[189] Often, the mere threat of firing, or calling the police to the factory, is sufficient to cause migrant workers to withdraw their demands for protection under Thai labor laws and the various international human rights instruments on labor ratified by Thailand.[190]

Human Rights Watch found many serious abuses of migrants’ rights at work, including intimidation and threats, especially in cases when workers seek to organize and collectively assert their rights, and cases of retaliation when workers filed grievances with Thai authorities against their employers. Both registered and unregistered migrant workers complain they face physical and verbal abuse, forced overtime and lack of holidays, poor wages and dangerous working conditions, and unexplained and illegal deductions from their salary.[191] Migrant children work in situations of serious labor exploitation, and in many cases are involved in the worst forms of child labor.[192] Unauthorized departure from work also frequently means the migrant worker forfeits whatever outstanding wages are owed to him. Throughout the process, the migrant must be on guard against employers’ use of immigration officials and police, or sometimes local thugs or supervisors to retaliate against the migrant worker.

No Freedom to Organize and Collectively Bargain

Most migrant workers we interviewed had little understanding of their internationally recognized right to organize to collectively assert their rights. Many said they feared punishment, including grievous bodily harm, from their employer or local officials and police if it was learned they were organizing their fellow workers. Virtually all those interviewed assert this fear is well justified because employers target and retaliate against migrant workers who seek to assert their rights in the workplace.[193]

The rights of migrant workers to establish and register a trade union are clearly restricted in Thai law, in violation of ILO Convention No. 87 (Freedom of Association). While Thailand has not ratified this convention, it is bound as a member of the ILO to comply with ILO Declaration on Fundamental Principles and Rights at Work.[194] Article 88 of the Labor Relations Act of 1975 (LRA 1975) limits the right to establish a trade union to those having Thai nationality. Similarly, article 100 provides that only persons with Thai nationality can be members of the union executive committee and sub-committees set out as the legal leadership of the union.[195] As a result, migrant workers may be regular members of a trade union, but the union must be founded and led by Thais.

Phoe Zaw, a Burmese factory worker in Mae Sot, told Human Rights Watch that on August 11, 2008, a security guard attacked him without provocation at the knitting factory where he worked. His left hand and arm were broken fending off the blow of the guard’s nightstick. The guard reported that he thought Phoe Zaw was a banned worker, a claim that Phoe Zaw and his fellow workers rejected. Phoe Zaw instead believes he was attacked because of his labor rights activities.

Phoe Zaw said, “I think ... I was attacked because of my actions in leading the workers when we were unhappy about having to work on Sundays. The manager always wanted us to work seven days a week ... the workers were scared to organize a group to do anything about this.”[196] Two weeks before, on July 27, Phoe Zaw led a spontaneous work stoppage at the factory seeking higher pay, time off on Sunday, and better quality rice and water from the management. The workers ignored the orders of the infuriated Thai manager to return to work or face dismissal, prompting the factory owner to come and negotiate in an open meeting with the workers. Following this incident, Phoe Zaw told Human Rights Watch that his co-workers frequently invited him to discussions and recognized him as a leader, and work supervisors intensified their scrutiny of his work and actions.

After the attack on Phoe Zaw, workers saw the manager with his arm around the security guard, who was employed by a security contractor firm that removed the guard from the factory the next day.

Even the suspicion of being involved in organizing or coordinating group activities by workers brings migrants under potentially hostile suspicion from managers. Mon Mon Shwe said she attended a meeting of a labor rights organization operating in Mae Sot. It made her manager suspicious—so she lied and told him the topic of the gathering was family planning. “I think if they [management] found out they would be aggressive.... The employer does not want us to know about rights or more salary. When we are working here we are working under fear,” she said.[197]

Despite assertions by the Ministry of Labor that all migrant workers are covered by Thailand’s labor laws, in practice those laws’ protections are seldom implemented in the case of migrant workers. In 2008, the Labor Rights Subcommittee of the NHRC stated in its summary report on its six years of work that:

From our investigations, it was found that when migrant workers appointed a representative to bargain about wages or welfare, the employers harassed them, discretely arranged for physical attacks against them, had them arrested and charged with criminal offenses, and as we always found when there was bargaining taking place or a dispute within the factory, called in the police to inspect the workplace. Those workers with migrant worker IDs would be quickly terminated, making them equivalent to persons who entered the country illegally, and the police quickly arrested and deported them—even though they have filed complaints that are in the process of being investigated or are in the courts.”[198]

Intimidation and False Allegations against Workers

Employers use bullying tactics and fraudulent accusations to keep migrant workers in fear and under their control, correctly believing that most migrant workers will not risk potential retaliation or arrest by police in order to file a complaint.

Yos Rangseay, from Cambodia, told Human Rights Watch that he supervised 25 Cambodian workers for an abusive Thai employer at a fish packaging factory[199] for five months in Rayong province in 2007. Rangseay said he faced intense verbal abuse and regular threats of physical violence every time the workers made mistakes in the production process. Rangseay recalled meetings when his manager said to them, “If you do work like this, and [are] not well.... I can shoot you any time that I want, and throw you like a dog by the side of a road.” The employer allegedly reinforced his threats by displaying a gun when meeting with Rangseay and the workers. Rangseay said:

[The employer] put a gun on his desk where we could all see it, and [then] calls the meeting around the desk.... He did this when he was angry.... [it] was a revolver. He said these kinds of things to me, right in front of the workers.

According to Yos Rangseay, the employer frequently acted as if he was going to hit workers in addition to verbally abusing them. When Yos Rangseay and his wife decided to quit, the employer berated them at the factory, refused to let them leave, and ordered other workers not to enter the factory. Yos Rangseay credits his survival solely to the presence of another Thai man in the meeting. He was finally allowed to quit on the condition that he not claim the wages he had earned in the previous week. Yos Rangseay said that the Cambodian migrant workers believe the employer has a close relationship with the Ban Phe sub-district police and added this is the major reason that Cambodian migrant workers fear him.[200] The factory frequently violated the labor law by paying wages late, and threatening or severely penalizing workers who sought to take leave by docking their pay.[201]

Other employers use a less direct but equally effective route to intimidate workers when attempts are made to assert rights, receive back-pay, or change employers. Human Rights Watch found many cases where an employer made false allegations about their workers and then called the police to come arrest them.

In October 2008, Koy Mala, an 18-year-old Mon from Burma, said she informed her Thai employer in Samut Sakhon province that she was quitting work because she could no longer physically withstand the 18 to 20 hour workdays at the restaurant. The restaurant owner held Kao’s original migrant registration card and refused to let her quit, she said. After failing to persuade Koy to change her mind, she said her employer falsely accused her of stealing from another worker[202] and called two police officers from the Muang district police station.

Koy Mala told Human Rights Watch: “My employer said to the police, ‘You take care of her any way that you want’ and, ‘You can do anything you want with her.’ And I thought to myself, what does that mean...? Are they going to beat me? Are they going to rape me?”[203]

The officers and the owner then cajoled and threatened Kao to stay at work or she would be arrested. When Koy refused to be dissuaded, the owner alleged Koy was undocumented and demanded she be arrested. The police took her away, ignoring the pleas of Koy and her mother (who arrived to take her home) that she had a migrant worker ID card.[204] Koy said that she was in shock and fearful on the way to the Muang district police station:

I was so worried ... I thought they can take me anywhere they want, maybe they would take me somewhere and do things to me—and I knew that I could not resist.... because I am a woman.[205]

The police held Koy in the police station lock-up for six days until the Labor Rights Promotion Network (LPN) engineered her release by finding a new employer to hire her.[206]

Retaliation against Workers Filing Labor Complaints

For those migrant workers raising complaints of unfair treatment to the Department of Labor Protection and Welfare (DLPW), the risk of retaliation from their employers is real.[207] On October 7, 2008, Saw Lei, a construction worker from Burma, filed a complaint with the Mae Sot DLPW office when his employer refused to pay him back wages of 2250 baht taken in unauthorized daily deductions from his salary.[208] The next day, Saw Lei went with the DLPW officer to his employer’s house to negotiate a settlement. During the discussions, his employer’s wife took multiple close-up photos of Saw Lei in an intimidating manner. The three Thais did not permit Saw Lei to sit at the table with them, so instead he squatted on the floor at their feet while they discussed his settlement. When he disagreed with the employer’s proposal of a delayed payment, his employer erupted in front of the DLPW officer, kicked Saw Lei in the shoulder, causing him to cry out and topple over in pain, and then stormed out of the room, ending the negotiations.

The real role of the DLPW became clear when the officer returned to his office with Saw Lei, drafted a report in Thai (which Saw Lei told the officer he could not read), and ordered him to sign it. Saw Lei refused. The same evening the DLPW officer tried again by visiting him at the Yaung Chi Oo Workers Association (YCOWA) office. A YCOWA translator reviewed the document and found it stated that Saw Lei did not want to sue his employer and did not want his money back.[209] The employer then mounted a campaign to intimidate Saw Lei to drop the matter. According to Saw Lei’s brother, who is still at the worksite, the employer has asked other workers at the worksite “who is related to him [Saw Lei]? I will find them” and demanded to know about Saw Lei’s movements and whereabouts. Saw Lei sent his family back to Burma for safety and his brother pleaded with him to drop the case.[210]

Aung Zaw, a Burmese migrant worker, told Human Rights Watch about the beating he suffered when he sought to collect his back pay from a knitting factory in Mae Pa sub-district, Mae Sot district, Tak province. He said that as he approached the manager’s office at the factory on the evening of the June 15, 2008, the manager and four other staff came out of the room and assaulted him. Two of the men stabbed Aung Zaw with screwdrivers in the forehead, temple, and back of the head. Describing his injuries, he said that “my head was bleeding and my eye was hurt. I felt very dizzy, I could not see clearly, and I fell down on the floor.” The manager then took Aung Zaw to a construction site and abandoned him there, leaving him to sleep in the construction yard with his injuries still untreated.[211]

Khin Moe is an unregistered construction worker from Burma in Mae Sot. In October 2007, he and the other workers on his crew faced problems with their Thai manager, who paid them only about a third of the back wages they were owed. Khin Moe told Human Rights Watch that he led an effort to file a complaint with the DLPW office in Mae Sot. DLPW officers called his employer to the office to negotiate, and the employer agreed to pay the owed back wages. But as Khin Moe biked from the DLPW office home, he said his manager rode up on his motorcycle with a policeman (whom Khin Moe saw at the DLPW office) sitting behind him. The policeman arrested Khin Moe for not having a migrant ID card, sent him to prison for 13 days, and confiscated his bicycle.[212]

Labor Exploitation

Migrant workers regularly work more hours than is legally permitted by Thai labor laws, get paid sub-minimum wages, work in unsafe conditions, and face illegal deductions from their pay. In some cases, migrant workers are cheated out of all their wages by unscrupulous employers, sub-contractors, or supervisors, leaving them with a difficult choice to continue to protest (and face possible retaliation) or abandon their pay claims, shift employers, and hope for better treatment next time. The inordinate control that employers have over a migrant’s ability to transfer employment means that many migrants face the choice of enduring exploitative work conditions or leaving abusive conditions without their employer’s consent and thereby losing their documented status.

Comprehensive research by the ILO in 2005 found migrants working extremely long hours for less than the minimum wage. For example, 62 percent of fishing boat workers, 39 percent of fish processing workers, and 82 percent of domestic workers were working more than 12 hours per day, yet few were paid the minimum wage, and even fewer received correct wages with overtime factored in to their pay packet. Even manufacturing workers working between 9 to 12 hours per day are effectively cheated out of the legal overtime payments they are owed.[213] Another ILO report published in 2006 found that 83 percent of child workers surveyed in Mae Sot were working 11 to 12 hours per day, and 49 percent were not permitted to take any days off during the course of a month—yet employers paid these child workers only one-third to one-fifth as much as the legal minimum wage.[214]

Mom Channary, a Cambodian construction worker, faced difficulties in September 2008 with a Thai construction sub-contractor who paid her first two days on the job but then failed to pay for the rest of the month’s work. She said her boss threatened her and six other Cambodian workers with arrest by the police if they complained. Meanwhile, Thai citizens from Surin province who were also on the work crew took the matter to the construction contractor who had hired the sub-contractor. The Thais secured payment of their back-wages but when the Cambodian workers went to seek the same remedy, they were told the money was all gone. She said:

I was so angry, I wanted to yell and I wanted to scream—but I was not brave enough because that person threatened that if anyone raised an issue he would file a police complaint and have the police arrest us.... I am certain the police would come, because if it is a Thai who files the complaint, then they will definitely come. But for me [if I filed a complaint], I don’t know if they would come.... I am too scared to even call the police station.[215]

When they are changing employers, migrant workers are often cheated out of wages owed to them. Ma Myo, a Burmese line supervisor at a garment factory in Mae Sot, said she told her manager she was quitting during the first week of April 2008. The manager told her to come get her final pay (2800 baht) after the Buddhist New Year.[216] But when she went on April 16, the manager presented her with a sheet of specious deductions for damaging clothes in production and demands for payment of water and electricity bills. The owner’s computation claimed Ma Myo owed the factory 3500 baht. Ma Myo filed a complaint with the DLPW, but she said that many migrant workers either do not have the knowledge or the courage to do this. Meanwhile, the employer held and never returned her migrant worker ID, making her vulnerable to arrest and extortion by local authorities.[217]

Cheating of wages happens even on Thai government projects. Sai Ti, an ethnic Shan from Burma who is a legally registered migrant worker, told Human Rights Watch that he was cheated out of five months of wages by a contactor constructing a bridge at a Royal Thai Army base in Mae Rim district, Chiang Mai province. The contractor owed each worker more than 15,000 baht, but he never paid them anything.[218]

Even when applying for poorly paid wage work, migrant workers must pay. Interviews with workers in Samut Sakhon found undocumented migrants are frequently required to pay informal application “fees” to get jobs in factories. For example, Mi Mi, an undocumented migrant from Burma with two dependent children whose husband is in jail, finds the application fees are a tremendous barrier to seeking gainful employment. She said:

I have to pay a lot of baht to apply and get a job. I don’t know why I need to pay this money, but it’s like a system—whoever has some money can find a job. They [the employer representatives] say to me, well if you don’t want to give to me, you don’t have to work here.

She stated that for legally registered migrants seeking to transfer, the usual fee is between 2000 to 2500 baht while undocumented migrants must pay more.[219] Another Burmese worker in Mahachai, Zar Ni, said that he had to pay 2500 baht to a supervisor to obtain a job. Ultimately, he said, the workplace cheated him—he held his job for only a short time before being terminated because he was not a legally registered worker.[220]

 

Seizure of Migrant Worker Documents

In 2008, the US State Department reported that in Thailand, “Employers routinely kept possession of migrant workers’ registration and travel documents, which restricted their travel outside of the work premises.”[221] Without their original documents in hand, migrant workers are highly vulnerable to local officials’ discretion on whether to accept the documents as legitimate. As noted in several cases above, police and other authorities often use the fact that workers are carrying photocopies rather than original documents as a pretext for temporary detention and extortion.

In her experience in Mae Sot, Burmese migrant Ma Myo said employers justify holding the original registration documents of migrant workers by claiming they are required to keep track of the workers they register. Without their original documents, registered workers are often detained by police who then call their employers to send representatives to take those workers out of detention and pay any fees (legal or otherwise) for their release. In this way, the onus for monitoring migrant workers is transferred from government to the workers’ employer. This arrangement serves the employers’ interests in limiting the ability of workers to change employers while also supporting the government’s underlying national security rationale in investing employers with full control over the workers. Ma Myo said:

Most of the employers do not allow us to hold the original worker ID card because they say they granted us the work permit, they had to go to sign for it, and that if we go to some other place, or go to work for someone else and then cause trouble, then the employer who signed for the work permit might get in trouble.[222]

Mi Mi said that her migrant worker ID card is held by the management of the textile factory in Samut Sakhon where she works. Normally, she is only able to carry a photocopy of the card although she added that she could ask for her original card in case she needed it for a specific purpose. She said “I thought that they [factory management] were worried that I might try to move to another factory and leave that area. They would lose and so they.... make sure that we [migrant workers] can’t leave.”[223]

The practice of employers holding migrant workers documents is an informal yet effective form of travel restriction, but it is supplemented by formal travel controls. Migrant registration IDs are issued with the restriction that migrant workers remain within the province where their workplace is located. They must request and receive written permission from the district chief (an appointed officer of the Ministry of Interior) if they wish to travel outside the province. The application procedures reinforce employers’ control over their migrant employees because unless the employer or his representatives signs the application, the district chief will usually refuse to grant permission. As a consequence, it is quite difficult for migrant workers to obtain approval for travel outside their designated province.[224] Registered migrants who travel beyond their province without written authorization are often arrested and are subject to deportation.

Ko Shwe, an ethnic Mon migrant worker from Burma who works in Muang district, Surat Thani province, said that district officials refused permission for him to travel to tend to a severely ill relative: “I stay in Thailand, I made the migrant worker ID and I paid for it—but I do not feel free.... Freedom of movement is something that is only on paper for us migrant workers.”[225]