Report in which the committee requests to be kept informed of development - Report No 372, June 2014

1. 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.
2. 576. The Government forwarded its response to the allegations in a communication dated 11 March 2014.
3. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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).
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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

1. 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.
2. 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.
3. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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].
6. 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.
7. 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.
8. 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.