Labour Court Region 5 revoked the decision of the Committee of the Employee Assistance Fund that denied migrant workers access to the Fund, the Court ruling that “the legal status of the employee not to be invoked to rule out their access to the Employee Assistance Fund”.
File photo. Taken by Wanna Tamthong
On 23 March 2022, the Labour Court Region 5 ruled in the case filed by 35 migrant employees against the Committee of the Employee Assistance Fund and the Chiang Mai Provincial Governor in the Black Case no. R212-246/2564 to request the Court to revoke the decision made by the Committee of the Employee Assistance Fund to deny payment from the Employee Assistance Fund to address grievances of the migrant employees.
Essentially, the Court ruled that;
- Given that the Employee Assistance Fund has been established by virtue of the Labour Protection Act BE 2541 in compliance with international labour standards, it, therefore, aims to offer protection to all employees with no specific provisions to segregate between Thai employees and non-Thai employees.
- Under the Labour Protection Act BE 2541’s Sections 126 and 134, the Committee of the Employee Assistance Fund is vested with powers and duties to make their review and it has to be done in compliance with the Regulation of the Committee of the Employee Assistance Fund, a defendant in this case who also gave evidence admitting that “..the qualifications of migrant workers who are plaintiffs in this case met all the requirements pursuant to the Regulation of the Committee of the Employee Assistance Fund B.E.2560 (A.D.2017). But according to the circular letter no. R-NG 0507/W006876 dated 13 July 2015 concerning the guidance for the review of the Fund Committee, the employees eligible to the Employee Assistance Fund have attain a legal immigration status.”
- As a matter of fact, the work permits of the employees indicate name of the employer in work permit different from the actual one. This therefore rendered the employees illegal migrants and not being eligible to have access to the Employee Assistance Fund pursuant to the circular letter. The Court deems that, at present, the Regulation of the Committee of the Employee Assistance Fund B.E. 2560 is a different regulation from the past. The defendants cannot invoke the reasons to deny access to the assistance fund of the plaintiffs. According to the Court, the guideline laid down by the circular letter no. R-NG 0507/W006876 dated 13 July 2015 determined the criteria concerning the payment of assistance fund to alien employees pursuant to the Regulation of the Committee of the Employee Assistance Fund regarding the payment of welfare fund, the rate of payment and the duration of payment B.E. 2546 (A.D.2003). At present, the Regulation has been repealed and replaced by the Regulation of the Committee of the Employee Assistance Fund regarding the payment of welfare fund, the rate of payment and the duration of payment B.E. 2560 (A.D.2017) which has not set out criteria concerning the payment of welfare fund. That the defendants decided to not pay assistance fund to the employees who were migrant workers by invoking a regulation which has since been revoked is tantamount to issuing an instruction beyond what is provided for in the law. The Court ruled to revoke the defendant’ decision to deny payment of the assistance fund and ordered the defendant and co-defendant to pay the assistance fund to the plaintiffs who are the 35 migrant workers per their case.
This case has stemmed from the legal assistance given by HRDF to the 38 migrant workers employed by a cleaning company contracted to service a public hospital in Chiang Mai. The company has failed to pay the workers and the workers have not received both their wage and any compensation. They have thus complained with the labour inspector of the Chiang Mai Provincial Office of Labor Welfare and Protection and on 8 September 2020, the labour inspector has issued the order no. CM 0029/4346 instructing the employers to pay the workers the amount of 1,097,620 THB (one million, ninety-seven thousand, six hundred and twenty baht) for the outstanding wage and compensation.
After the order has been issued by the labour inspector, the employers have failed to appeal within 30 days. As a result, the labour inspector’s order is considered final. Still, all the affected workers have not received their wage. They have thus asked for employee assistance from the Employee Assistance Fund via the Chiang Mai Provincial Office of Labor Welfare and Protection on 12 November 2020.
On 14 June, the Chiang Mai Provincial Office of Labor Welfare and Protection has informed them in a letter of the decision made by the Committee of the Employee Assistance Fund to deny the disbursement of fund to help the 37 employees since all of them are migrant workers barring one who has Thai nationality and is therefore entitled to such employee assistance.
In the letter, it simply states that the case of these migrant workers does not comply with the criteria set forth the circular letter no. R-NG 0507/W006876 dated 13 July 2015 without further invoking other reasons or legal provisions. After the Court allowed the case to go to trial, it has summoned the Chiang Mai Provincial Governor to serve a co-defendant in this case since he had the power to review the application for the assistance fund as well.
Pasuta Chuenkhachorn, attorney and coordinator of the Migrant Justice Programme (MJP), Human Rights and Development Foundation (HRDF) said that all workers employed in Thailand should be entitled to rights and remedies pursuant to the Labour Protection Act 1998 and the Constitution 2017’s Section 27/3 which prescribe against an unjust discrimination. In addition, according to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) to which Thailand is a state party, the Committee on the Elimination of All Forms of Racial Discrimination has issued a Concluding Observation regarding Thailand’s report on the elimination of all forms of racial discrimination on 3 December 2021. Its Paragraph 32 states that “The Committee recommends that the State party enhance its efforts to improve the working and living conditions of migrant workers and their families, including by raising awareness among migrant workers of their rights and of existing avenues for filing complaints, and strengthening labour inspections, including in sectors where migrant workers are numerous, and bringing exploitative employers to justice and compensating victims....” Therefore, the Ministry of Labour has to review and revoke any guidelines which appear to exclude access to the protection of the rights of employees and any discrimination.