Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 327, Marzo 2002

1. 762. In communications dated 3 May and 7 July 2001, the ITV Labour Union presented a complaint of violations of freedom of association against the Government of Thailand.
2. 763. The Government furnished its observations in a communication dated 19 September 2001.
3. 764. Thailand has ratified neither 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 complainant's allegations

1. 765. In its communication dated 3 May 2001, the complainant states that the management of ITV -- Shin Corporation Limited, issued an order for the dismissal of 21 employees of ITV on 6 February 2001. The complainant indicates that the company gave two reasons for the terminations: first, it alleged that the employees had circulated false news about the company, and secondly, it claimed that there needed to be a reduction in the workforce at the company. According to the complainant, however, the management of ITV carried out the dismissals with the objective of destroying the labour union that had just been formed by the employees of ITV. The complainant explains that it was officially registered with the Ministry of Labour and Social Welfare on 5 January 2001 (registration number GT 746). The complainant firmly believes that its establishment was the real reason for the dismissals rather than the reasons cited by the management of ITV. This is clearly illustrated by the fact that the dismissals of the 21 employees occurred on 6 February 2001, just one day after the first general meeting of the union. This meeting was attended by officials of the Ministry of Labour and Social Welfare who acknowledged the election of the union board members.
2. 766. Furthermore, the complainant emphasizes that all 21 employees who were dismissed were union members and nine of those dismissed were elected board members. Amongst the nine board members were persons who all held important positions in the union including president, vice-president and secretary-general. The complainant contends that before the dismissals, there were announcements made and actions undertaken by management that clearly indicated that management was not happy that a labour union had been organized at ITV. This was despite the fact that the complainant was organized fully in accordance with Thai law, and was recognized by the authorities as legally registered. Moreover, the board members who were dismissed received the certificate certifying their positions, issued by the Ministry of Labour and Social Welfare on 22 February 2001. The complainant then proceeds to outline the series of events that took place leading to the termination of the 21 employees.
3. 767. It points out that events started in the middle of 2000, when there was a purchase of 39 per cent of the stock of ITV by Shin Corporation Limited, which is owned by the son of Thaksin Shinawatra, the leader of the Thai Rak Thai Party. According to the complainant, editorial interference in the news section by the new management often occurred, especially in the period before the national election held on 6 January 2001, which saw Thaksin Shinawatra elected as the Prime Minister. Before that, on 8 December 2000, Thaksin Shinawatra testified in his defence for the first time about the case of the transfer of his assets to the National Counter-Corruption Commission. At 23.30 hours that night, when news is not usually broadcast, the tape of Mr. Thaksin’s testimony (which had been shown earlier) was shown again on ITV. At the end of December 2000, the Director of the News Division was dismissed and a committee of Shin Corporation executives was created to oversee the post temporarily. On 3 January 2001, ITV directors ordered that a news item relating to Mr. Thaksin not be broadcast; this order was made without the approval of the Editorial Division which normally screens news items. On the evening of that very same day, about 15 employees from the News Division publicly broadcast news and urged the ITV management to refrain from interfering in news coverage in the future.
4. 768. In the meantime, during the month of December 2000 and pursuant to discussions between ITV staff, a decision to form a union was made. Union organizing took place and a group of employees from the News Division applied to form the ITV Labour Union, and on 5 January 2001, official registration of the union was received from the Central Registration Division of the Ministry of Labour and Social Welfare according to the relevant law (Labour Relations Act of 1975). The registration number, Gor Tor 746, was issued on 5 January 2001 and signed by Ms. Saowalak Aapornrattanan of the Central Registration Division. On 9 January 2001, ITV management representatives were informed by the employees concerned that the ITV union had been formed. Management representatives indicated that they did not see the need for a union at ITV and that the formation of the union might have a negative impact on listing ITV shares in the stock market in the future. From 10 to 11 January 2001, the management tried to collect signed statements from employees indicating that they did not want a union at ITV. At the same time, the management indicated to employees that anyone who became a union member would not receive a pay bonus at the end of January. On 12 January 2001, the ITV Director pressured the News Director to resign. Additionally, the technical and studio staff (who had previously worked with the News staff) were moved to the Reporting Division. According to the complainant, this move was intended to reduce the strength of the News Division. Moreover, the management announced that a committee would be appointed to investigate the matter of employees circulating false news about ITV to outside organizations. Consequently, from 23 to 25 January 2001, an investigation was carried out into the behaviour of approximately 20 employees. On 2 February 2001, there was an ITV news release according to which the ITV Management Board had received the report of the investigation committee.
5. 769. On 5 February 2001, the ITV Labour Union held its first general meeting, with a total of 41 members attending the meeting. Fifteen members were elected to the executive committee of the labour union, in accordance with union regulations and the law. Certain officials of the Ministry of Labour and Social Welfare who had attended the meeting indicated that it had proceeded in accordance with the law. The officials took notes of the meeting and the names of the union members who were elected to the executive committee of the union. The union agreed by vote to put forward collective bargaining demands to the management. However, on 7 February 2001 ITV management officially informed 21 ITV employees that they were dismissed by a letter dated 6 February 2001. On 22 February 2001, the 15 union members who were elected to the executive committee of the ITV Labour Union received a letter from the Ministry of Labour and Social Welfare indicating that they were union executive board officials from 5 February 2001 until 4 February 2003 under the provisions of the Labour Relations Act of 1975. The complainant firmly believes that the rights of ITV employees to form a union have been violated by ITV management, and that the reason the 21 ITV employees were dismissed was related to the formation of the ITV union.
6. 770. In its communication dated 7 July 2001, the complainant states that in a decision rendered on 1 June 2001, the Labour Relations Committee (LRC) unanimously ordered the reinstatement of the 21 dismissed ITV Labour Union executives and members. It points out nevertheless that in newspaper reports in the Thai press, Shin Corporation executives had indicated that they would appeal this decision to the labour courts since they believed that they had the right to dismiss the employees concerned under the law. In the complainant’s view, this demonstrated that the Labour Relations Act of 1975 was deficient in protecting workers’ right to freedom of association.

B. The Government's reply

1. 771. In a communication dated 19 September 2001, the Government first of all describes the sequence of events surrounding this case. At the end of 2000, news on internal conflict within the ITV Company Limited (Public) concerning the ITV news presentation was widely spread. There was a movement by ITV staff to stop any interference in ITV news coverage. The situation led to the to the termination of the Director of the News Division.
2. 772. On 5 January 2001, 14 employees of the ITV News Division, led by Ms. Orapin Lilitwisitwong, submitted an application for the registration of a labour union to the Registrar under the Labour Relations Act of 1975. The Registrar approved the registration of the ITV Labour Union on the same day (5 January 2001). The ITV Labour Union held its first general meeting on 5 February 2001, with a total of 41 union members attending the meeting. During the meeting, 15 executive committee members were elected.
3. 773. On 7 February 2001, the ITV Company Limited (Public) laid off 21 employees. Nine of them were committee members of the ITV Labour Union, including its President, Ms. Orapin Lilitwisitwong. The management gave the following reasons for the lay-offs: (1) some employees had committed a wrongful act which was liable to penalty under the working regulations of the company; and (2) some employees were made redundant due to the necessity of workforce downsizing. The ITV Labour Union was of the opinion that the real reason behind the lay-offs of the 21 employees was an effort to destroy it. Therefore, on 9 March 2001, it filed a complaint to the Labour Relations Committee (LRC), a tripartite body established under the Labour Relations Act of 1975, in order to consider the case.
4. 774. On 29 June 2001, the LRC ruled that seven laid-off ITV reporters who had given press interviews criticizing the television station, had the right to do so to protect their independence. In a 16-page ruling, the LRC said ITV must offer the seven reporters, and another 14 who were made redundant, positions as journalists at the television station. The LRC stated that the reporters had the constitutional right to do so in accordance with article 41 of the Thai Constitution to protect the integrity of their profession. The LRC also rejected as groundless ITV’s reason that it was in financial difficulty for laying off the other 14 reporters. It ruled that ITV had violated section 121 of the Labour Relations Act of 1975 by laying off 21 reporters, and it ordered ITV to reinstate them at their last salary and in their last position and give them back pay for the past four months as compensation. On 10 July 2001, ITV appealed the ruling of the LRC to the Central Labour Court. The case is sub judice. The Government indicates that it is willing to update the Committee on all forthcoming developments relating to this case.
5. 775. The Government then contends that protection of the right to organize is guaranteed under the Labour Relations Act of 1975, contrary to what is alleged by the complainant. The protection of the right to form a labour union without fear of discrimination, and particularly of dismissal, is prescribed in sections 121 to 127 of the Labour Relations Act of 1975 under Chapter 9 concerning unfair labour practices. The Government adds that in case of a violation of any of these provisions, the injured party may file a complaint with the LRC within 60 days of such violation. Upon receipt of the complaint, the LRC shall issue an order, if it believes the complaint is well founded, within 90 days from the date of such receipt. In cases where the party against which the complaint is brought fails to comply with that order, a criminal prosecution may be instituted.

C. The Committee's conclusions

1. 776. The Committee notes that the allegations in this case relate to the dismissals of 21 employees of ITV-Shin Corporation, all of whom were either members or elected union officials of the ITV Labour Union. According to the complainant, before the dismissals there were announcements made and actions undertaken by the management that clearly indicated that the latter was not happy that a union had been organized at ITV. Hence, in the complainant’s view, the management of ITV carried out the dismissals with the objective of destroying the union that had been formed by the employees of ITV one month ago. The Committee notes that the Government does not refute these allegations. Rather, it indicates that the two reasons given by ITV management for carrying out the dismissals, namely that (1) some employees had committed a wrongful act which was liable to penalty under the working regulations of the company, and (2) some employees were made redundant due to the necessity of workforce downsizing, were rejected as groundless by the tripartite Labour Relations Committee (LRC) to which the ITV Labour Union had filed a complaint. The Committee notes that in its ruling of 29 June 2001, the LRC found that ITV had violated section 121 of the Labour Relations Act of 1975 by laying off the 21 employees and ordered ITV to reinstate them at their last salary and in their last position and give them back pay for the past four months as compensation.
2. 777. As regards the 21 employees of ITV who were dismissed, the Committee notes that all of them were members of the recently formed ITV Labour Union. The Committee further notes that, while seven of them were laid off by management for having committed a wrongful act in violation of the working regulations of the company, it is the Committee’s understanding that this "wrongful act" apparently related to these seven employees broadcasting news about ITV management interfering in news coverage. The Committee notes, however, that the other 14 employees were not laid off for "circulating false news about ITV to outside organizations" but because the company was in financial difficulty. Moreover, the Committee notes with serious concern that upon being informed that a union had been formed at ITV, the management resorted to various tactics to discourage other employees from joining the ITV Labour Union, such as attempting to collect signed statements from them to the effect that they did not want a union at ITV or threatening them with the non-payment of bonuses if they joined the union. Finally, the Committee observes that the Government does not deny the anti-union attitude of the management but confines itself to affirming that the Labour Relations Act of 1975 provides adequate protection against acts of anti-union discrimination, including dismissal.
3. 778. The above elements lead the Committee to conclude that the 21 former employees of ITV were dismissed on account of their membership of the ITV Labour Union. In this regard, the Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 696]. The Committee also notes that out of the 21 dismissed employees, nine were elected union officials including the president, vice-president and secretary-general. In these circumstances, the Committee must emphasize that one of the principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly needed in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee considers that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 724]. Recalling that the Government is responsible for preventing all acts of anti-union discrimination, the Committee accordingly requests the Government to take steps to ensure the reinstatement of these 21 members and officials of the ITV Labour Union in their jobs, with the payment of back wages. It further requests the Government to keep it informed of any developments in this regard.
4. 779. The Committee notes that the ITV Labour Union filed a complaint over the dismissals to the tripartite LRC which, on 29 June 2001, found that ITV had violated section 121 of the Labour Relations Act of 1975 and unanimously ordered the reinstatement of the 21 dismissed ITV union officials and members. The Committee observes that section 121 of the Labour Relations Act of 1975 prohibits the employer from discriminating against employees on account of their trade union membership, activities or functions, both at the time of recruitment as well as during the employment relationship; this provision further prohibits the employer from interfering in the formation and functioning of trade unions. The Committee notes however that, on 10 July 2001, ITV appealed against the ruling of the LRC to the Central Labour Court and that the case is sub judice. The Committee would request the Government to keep it informed of the outcome of the judgement of the Central Labour Court in this regard.