Thus this provision is written broadly and vaguely enough to engulf almost all forms of civil society organizations including trade unions and Section (b) allows for arbitrary discretion in the outlawing of associations. It should be noted that any successful strike or protest initiated by workers or a union is a form of intimidation in that it is show of solidarity and strength in an attempt to bolster the union’s or workers’ position at the bargaining table. All attempts to exercise the rights to unionize and collective bargaining have been met with suppression by the military junta. Organizations such as the Federation of Trade Unions of Burma established in 1991 have been forced underground and its members subject to execution and imprisonment. Trade union leader, Naing Than, has been serving a life sentence since 1988 for his role in the forming of Strike Committees during the Four Eights Uprisings. On August 4, 2002 U Saw Mya Than, a member of the FTUB, was murdered by SPDC soldiers and in November of 2003 nine democracy activists were sentenceed to death; among the charges were contacting the ILO to report instances of forced labour in Burma. Under these conditions of repression it is unimaginable that the exercising of the rights to unionize and collective bargaining could exist in present day Burma.

The military regime opposes the formation of independent unions because of their political implications; unions have throughout history campaigned the cause of the ordinary citizens and allowed for the mobilization of various grass-roots causes. Thus the junta in Rangoon fears labor unions as possible adversaries to the regime’s obsession with total domination over the Burmese society. Therefore, the Burmese junta’s opposition to labor unions in founded in political rea­sons.

As was aforementioned Burmese people are victims twice over in regards to deprivation of their freedom of association and assembly and in turn their rights to unionize and collective bargaining. Above it has been delineated how the Burmese people are deprived of their rights within Burma; in addition those Burmese who seek a better life for themselves and their families through work in neighboring Thailand are again victimized. Approximately two and half million migrant workers from Burma have entered Thailand seeking relief from the crushing poverty due to the misgovernance and corruption of the SPDC. On the one hand it may be true that in Thailand the migrant workers are able to secure employment which is scarce in Burma and are able to earn wages that they are unable to receive inside Burma. However, on the other hand the migrant workers are the victims of a myriad of unfair and inhumane labor practices which violate Thai Labor Law, International Standards, and common levels of human decency.  The minimum wage for Tak Province under Thai Labor Law is 135 Baht per day¹¹ ; however Burmese migrant workers on average make 50 to 70 Baht per day and some workers have wages as low as 30 Baht per day. The hourly rate for overtime in Tak Province in accordance with Thai Labor is 25 Baht per hour and pursuant to the 1998 Labour Protection Act (LPA) Sec­tion 24 “An employer shall not require an employee to work overtime on working days unless the employee’s prior consent is obtained at each occasion”. However Burmese workers are regularly forced to mandatory overtime without their consent, sometimes a shift can begin at 8am and end at midnight, the average hourly overtime pay for a Burmese migrant worker is 7 Baht per hour. This forced overtime which is often unpaid bares no difference from the SPDC’s practice of forced labour inside of Burma. Thus the Burmese workers exist in a state of forced labour within both Burma and in Thailand. Furthermore in violation of the 1998 LPA Burmese workers are forced to work 7 days per week and not given paid sick days.

Section 30 of the Thai Constitution states, “All persons are equal before the law and shall enjoy equal protection under the law”¹² , however the abuse of the rights of Burmese is widely known by Thai officials and regularly tolerated as normal business procedure.  In an interview with the Thai Labour Campaign staff on December 29th 2003¹³ the President of the Federation of Thai Industries, Tak Chapter stated that Burmese workers are not entitled to minimum wage for the following reasons:

It is worth noting that at no time does the President of the FTI base his argument in Thai Law or any other legal foundation. Furthermore, the argument in regards to deductions for food and shelter are easily dismissed when the math is done and the figures show the migrant workers are being over-charged even if this was a legitimate basis for paying under the minimum wage. In addition the food and housing provided (with no alternative or choice on the worker’s be­half) falls below any minimum standards for human decency either Thai or International. For example on August 31st 2004 two hundred workers acquired food poisoning from the food supplied by their employer who subsequently refused to provide expense for medical treatment or pay the required sick days pursuant to the 1998 LPA regardless of his negligence.¹⁴

In 2001 the Thai Government put in place a registration process by which Burmese migrant workers were able to legally register themselves enabling them to both stay and work in Thailand lawfully. The number of migrants who registered in 2001 was 560,000 and in 2002 was 350,000 and finally the number has fallen to 290,000 for 2003.¹⁵ The reason for the dramatic decline in the number of migrants registering is the fact while the registration papers are added cost to the migrants there exist no added benefits in exchange for the additional cost. Employers regularly confiscate the original copy of the registration papers and supply the migrants with copies of the originals. However, under the registration regulations the migrants are required to have the original registration papers on their persons at all times and thus the employers’ practice of confiscating the original and supplying the copies opens the migrants to harassment by Thai Police and Immigration Officials. On a regular basis migrant workers are stopped by Thai Officials who demand the migrants produce the originals of their paperwork and when they are unable to they’re required to pay bribes and if they’re unable to pay they are arrested or deported. The employers’ reasoning for the confiscation of the originals is to protect his/her investment in the workers because they fear the workers will simply run off to better employment opportunities once they have acquired their paperwork. There are two major defects with this reasoning; first, if the employer paid the minimum wage and provided a safe and healthy work condition no worker would seek better employment; second, the registration process is in place to protect the migrants and is not meant to be a security measure for the employer. The Thai government likes to pronounce it’s 2001 registration process as a successful step in protecting the rights of migrant workers and promoting their security, however, as has been show above the process does neither. If the Thai government were truly interested in protecting the rights of migrant workers they need not add more regulations and laws to there books but rather merely enforce their own Labor Laws (such as minimum wage, overtime pay, and work-hour limits) and also ensure the work conditions in regards to migrants meet international standards.

The International Convention on the Protection of Rights of All Migrant Workers and Members of their Families¹⁶ which entered into force on July 2003 states, “Taking into account the principles embodied in the basic instruments of the United Nations concerning human rights, in particular the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child,”. Thus, while Thailand has neither signed nor ratified the Convention on Migrant Workers, Thailand is still compelled under its obligations pursuant to ICCPR, ICESCR, and others to recognize the rights delineated in the Convention on Migrant Workers. The Convention states in Article 22 that, “It shall be unlawful for anyone, other than a public official duly authorized by law, to confiscate, destroy or attempt to destroy identity documents, documents authorizing entry to or stay, residence or establishment in the national territory or work permits. No authorized confiscation of such documents shall take place without delivery of a detailed receipt. In no case shall it be permitted to destroy the passport or equivalent document of a migrant worker or a member of his or her family”. Thus the Thai employers’ practice of confiscating the originals of the Burmese migrant workers’ registration documents is a direct violation of the obligation owed by Thailand to respect the human rights of Burmese migrants pursuant to Article 22 and in accordance with Thailand’s obligations under International Human Rights Instruments.

The Thai Constitution pursuant to Section 30 declares equal justice for all be­fore the law and Section 45 states, “A person shall enjoy the liberty to unite and form a union, league, co-operative, farmer group, private organization or any other group”.¹⁷ The Thai Constitution’s promise to equality and freedom of association are directly contradicted by the 1975 Labour Relations Act (LRA)¹⁸, Article 87 that states the ten persons needed to apply for legally registered union are required to be of Thai nationality. Also, Article 100 of the LRA states that the elected leadership of the union or union committee members is also required to be of Thai nationality. Thus, despite the Thai Constitution’s promises of equality and freedom of association Burmese migrants workers are deprived of the fundamental rights to unionize and collective bargaining on the very ba­sis of their being Burmese and not Thai nationals. Under the LRA Burmese migrants are able to join Thai unions, however, there are numerous reasons why this is not a real possibility. To begin with many employers employ only Burmese at their factories or workplace such that in reality there is no Thai union to join and the Burmese cannot form their own in accordance with Sec. 87 of the LRA. Furthermore, even where there are Thai labours employed they are normally paid the minimum wage so there is no incentive for them to form a union for the benefit of the Burmese. In addition there are both language and cultural barriers that prevent Burmese and Thais joining together to form unions. Finally, employers intentionally hire majority female workers with the knowledge that culturally Burmese females are less likely to assert their rights let alone form unions or approach male dominated Thai unions for membership. The Thai government’s reasoning for not allowing the Burmese migrants to unionize is the opaque logic of “National Security” without giving any clarification or explanation. When the Thais normally apply the term “National Security” to the Burmese migrant workers it is in regards to what the Thais argue is a rise in crime rates, drug trafficking, and environmental destruction accompanying the arrival of the Burmese migrants. However, it is confusing to understand how the right to unionize and struggle for minimum labour protections relates to the rise in crime, drug trafficking, and environmental destruction. It is also important to point out in regards to the rise in crime its usually the Burmese who are the victims of these rising crime rates at the hands of Thai employers and citizens. Therefore, the only logical reason one is left with in relation to the Thais opposition to allowing Burmese migrants to unionize is the fear that Burmese unions would do what the Thai government has neglected to do; enforce the Thai Labor Law and ensure the implementation of international labour standards. Thus, in contrast to the SPDC’s politically motivated reasons for oppos­ing the unionizing of Burmese people the Thai government’s reason is one bourn of the desire to exploit the situation of the Burmese for monetary reasons.

The denials of the freedom of association and assembly and in turn the rights to unionize and collective bargaining under Art. 87 and Art. 100 of the NRA contravene the Thai Constitution pursuit to Sec. 30 and Sec. 45.  These deprivations of fundamental human rights are also breaches of numerous international obligations to which Thailand is a party to. While Thailand has not ratified the Core Conventions 87 (Freedom of Association and Protection of the Right to Organize Convention, 1948) and 98 (Right to Organize and Collective Bargaining Convention, 1949), Thailand is still obligated to respect this Core Conventions.  Thailand is a founding member of the International Labor Organization and thus is compelled to uphold the Core Conventions as the 1998 International Labor Conference adopted the ILO Declaration on Fundamental Principals and Rights at Work states:

Endnotes

11. Labour Protection Act B.E. 2524 (1998).

12. Thail. Const. Chptr. III, 30.

13. See Dennis Arnold, South East Asian Research Center: The Situation of Burmese Migrant Workers in Mae Sot, Thailand, (2004

14. See BurmaNet News, August 31, 2004, at http://six.pairlist.net/pipermail/burmanet/20040831/ 000527.html

15. Id. Note 13 at 5-6.

16. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/ 45/49 (1990), entered into force 1 July 2003.

17. Thail. Const. Chptr. III, 45.

18. Labour Relation Act B.E. 2518 (A.D. 1975).