Remarks delivered at the Seaweb Seafood Summit, June 10, 2019, Bangkok, Thailand

Since the international media reported on forced labor, human trafficking and other egregious abuse in the Thai seafood industry in 2014, there has been significant legal, policy and regulatory reform of the fishing sector in Thailand, as well as private sector and NGO initiatives to address these complex issues. Yet, forced labor and other abuse continues to be documented every year, including in 2018, by reputable organizations. This presentation draws attention to one legal reform that has not yet been made, which is to bring Thai law in line with international standards and allow all workers, including migrant workers, rights to freedom of association and collective bargaining. We believe there is significant evidence to show that, as long as workers remain without basic trade union rights and their voices are suppressed, labor abuse will remain structurally entrenched in the seafood industry in Thailand.

The original meaning of worker voice is hundreds of years old and rooted in the organized labor movement. Freedom of association and collective bargaining have traditionally been the main channel for worker voice to employers and policy makers, and these rights are best exercised through legal trade unions. Rights to freedom of association and collective bargaining are included in the Universal Declaration of Human Rights (UDHR) and in ILO Conventions 87 and 98. Together, these rights comprise the first of the ILO’s eight core labor standards, which are minimum standards that should be a right for every worker around the world.

Freedom of association and the right to organize means that all workers, without distinction, have the right to join organizations of their choosing without previous authorization.  Once workers form trade unions, they should be able engage in collective bargaining, which involves negotiation between employers and workers (or their representatives) on an equal footing with the aim to ensure good conditions of work through means of a binding collective bargaining agreement (CBA). Under Convention 98, workers should be protected from anti-union discrimination, which means that being part of a union should not affect a workers’ ability to get or keep a job, and they should not face any retaliation for trying to organize or engage in union-related activity.

Trade unions prevent forced labor in several ways. Firstly, they address power imbalances that silence workers. When forming a union, workers elect their own representatives who negotiate a binding collective bargaining agreement with employers, which covers the wages, benefits and working conditions, and establishes a grievance procedure. Employers and workers are required to negotiate in “good faith”, which means taking each other’s concerns seriously and working to find solutions. If international brands and retailers really want to know what is happening in workplaces throughout their supply chains, it is in everyone’s interest to have a structure where workers can identify these issues independently and raise them on a regular basis without fear of retaliation. Forced labor often does not take place over night and if workers are able to report smaller labor issues before they turn into serious abuse, it works to prevent forced labor.  

Secondly, a union allows workers to raise issues affecting a large group. This is advantageous for workers because they feel safer in numbers and for employers because it prevents a situation where a human resources unit is receiving a lot of individual reports of similar issues. If verification is needed, it is easy to return to the same worker representatives who reported the problem in the first place. This cannot be done in the same way by third parties or external groups.

Thirdly, the labor issues can be resolved really close to the place where they happen, in the workplace, and in most cases do not need to be elevated to the government or labor courts or covered in an exposé, which can be damaging for workers and employers.

Finally, trade unions are able to address issues beyond the factory floor, including identifying legal gaps and pushing for legislative change so that all workers are covered by labor regulations. This reduces the possibility of forced labor practices and makes the whole environment that companies are operating in more legal.

In order to get a sense of what it might be like for a migrant worker in Thailand to try to speak out about labor issues, it is important to have a sense of the overall union context in the country. Approximately 80% of Thailand’s 39 million workers are not guaranteed full rights to organize. The two laws governing workers’ rights to form a union are only applicable to workers in state-owned enterprises and in the private sector (the State Enterprise Labor Relations Act, 2000 and the Labor Relations Act, 1975, respectively). Meanwhile, public sector, informal, temporary, or sub-contracted workers are not permitted to organize. Additionally, the law makes it difficult to register a union and requires authorization by the government, which is contradictory to international law. The law includes some provisions to prevent anti-union discrimination, but in practice this legal protection is often not afforded. Union leaders and workers are sometimes dismissed, transferred, blacklisted, intimidated to drop cases, and have been prosecuted by employers for union activity (see the ILO’s Committee on Freedom of Association and the AFL-CIO’s GSP petition in 2018). As a result of these legal restrictions, the unionization rate of the total workforce is estimated to be less than 2%, the lowest of any country in the region.

There are further restrictions on freedom of association and collective bargaining for migrant workers.  Under Thai law, only Thai nationals are permitted to form a union or serve on a union’s executive council.  This means that migrant workers may join existing unions but cannot form their own or serve as union leaders. This makes it very difficult to ensure their concerns are represented. Because there are few Thai nationals employed in the low- or semi-skilled jobs in seafood processing and fishing, there are typically no legal unions for migrants to join in these sectors. Aquaculture workers (because their work is seasonal) do not have the right to organize. The combination of these restrictions means that it is practically impossible for migrant workers in all segments of the seafood industry to form or join unions.  

Beyond being denied trade unions rights, there are limited legal options for migrant workers to report or address workplace problems. Migrant workers can try to organize at the workplace level and submit a demand to bargain with their employer. However, there is no legal protection against dismissal or other retaliation when doing so outside of a registered union. Most migrant workers cannot afford to take this risk, when dismissal is likely to lead to deportation. A second option is participating in a welfare committee, where workers can propose changes to working conditions. However, in Thailand, the committee representatives are of often selected by the employer, and these workers are unlikely to raise the difficult issues that needed to be addressed. Crucially, there is no process outlined for negotiation that would end in a contract where both parties are accountable (such as a collective bargaining agreement). These committees will not drive the structural change needed to address forced labor and should not be viewed as a substitute for trade unions. Thirdly, workers are able to file labor complaints with government authorities, however, migrants are typically afraid to report problems directly to authorities and NGOs often assist or serve as complaints mechanisms for migrant workers instead. This type of complaint handling does not scale in the way that is needed to cover the estimated 4 million migrant workers in Thailand and is not sustainable in the way that trade unions are.

There are other factors inhibiting workers from speaking out. Many migrant workers live in Thailand with a precarious immigration status, and work knowing there is a risk of deportation. In some cases, when migrant workers have reported labor abuse, they have faced criminal and/or civil prosecution by employers. These prosecutions create an environment where workers are afraid to speak out.

Recommendations to international brands and Thai suppliers

• Companies can and should now allow all workers to organize and engage in collective bargaining. International brands and retailers should adopt and enforce codes of conduct for suppliers that include the right to freedom of association and collective bargaining. They should also prohibit suppliers from interfering with or retaliating against workers who try to engage in collective bargaining or report labor rights abuse.
• In association with other employers, companies in Thailand should encourage the government to amend national law to bring it inline with international labor standards to strengthen rule of law, particularly by reforming the Labor Relations Act so it is in accordance with ILO Conventions 87 and 98.
• Companies should work with trade unions and civil society organizations to facilitate training for workers on labor rights, particularly on freedom of association and collective bargaining, to help lay the groundwork for worker organizing in this challenging legal and cultural environment.

Recommendations to the Government of Thailand

• The Thai government should ratify ILO Conventions 87 and 98 and reform national laws accordingly, including allowing all workers’ rights to freedom of association and collective bargaining. 
• The Thai government should remove defamation from the criminal code and ensure protection for union leaders and workers who try to improve workplace conditions, including ensuring that workers are not targeted or prosecuted by employers for trying to report labor abuse committed by those employers.

A forthcoming ILRF policy brief will cover these issues in greater detail.