There are between 1.5 and 2 million migrant workers in Thailand, roughly 80 percent are Burmese. This article highlights legal and social factors which contribute to the gross exploitation of migrant workers in Thailand, with a particular focus on Burmese workers in Mae Sot, Tak province, which is host to some 100,000 Burmese workers employed primarily in textile and garment factories, other manufacturing sectors, and agricultural work. Mae Sot is situated on the Thai side of the Thai-Burma border.
For over 10 years migrant workers have been going to Thailand, following the policy of ‘constructive engagement’ with Burma which began under Thailand’s Chatichai Choonhavan government (1988-91). With this policy came an increasingly porous border, in terms of capital, goods, and labour. As the cost of labour increased during Thailand’s boom decade of 1986-96, particularly from 1991 as real wages grew at eight percent a year, a steadily increasing number of migrant workers came to Thailand to take low-wage jobs often shunned by locals, primarily in fisheries and seafood processing, plantations and agriculture, domestic work, and factories. Even during the Asian financial crisis a much lower number of migrant workers were deported than initially planned by the government because of the Thai economy’s reliance on them.
The progress of late-developing economies like Thailand owed much to the expansion in labour intensive industries. Thailand’s boom decade saw textile and garment manufacturing, established in the 1960s, play a significant role in the growth of export-oriented industrialisation. Over the past two decades the Board of Investment has promoted Thailand as a secure place for investment, with abundant cheap labour. Investors are also attracted by the reality that unenforced labour laws backed by low rates of trade unionism result in an ‘ease of doing business’, especially in labour intensive sectors, where the workforce is easily controlled.
The low-skill end of Thailand’s labour supply has been unstable since the boom years due to low wages and high turnover rates, particularly as workers often change jobs searching for better pay and conditions. Labour supply problems have for a decade been eased by the influx of regular (legal) and irregular (illegal) migrant workers. The widespread ethnic/race discrimination and marginalisation that migrant workers in Thailand face, particularly the Burmese, has led to a huge, easily exploitable pool of labour whose rights are denied as a matter of routine.
Burmese workers go to Thailand due to various push and pull factors. Push factors are the result of often interconnected social, economic, and political factors in Burma, in many cases making the distinction between ‘economic migrants’ and refugees difficult. Most Burmese migrant workers go to Thailand, many also go to India, Malaysia, Japan, and South Korea, escaping forced labour and a variety of human rights abuses, a lack of economic opportunities and low wages, and seeking better socio-economic opportunities. Pull factors include the relative ease of crossing the Thai-Burma border, Thailand’s fast economic development, word of jobs from relatives and contacts, the prospect of less political and social oppression, and higher wages.
Gender discrimination also plays a significant role in women deciding to migrate, and inevitably compounds their vulnerability in Thailand, resulting in ‘double marginalisation’. Women and girls are often pushed for a number of gender-specific reasons, for example, sexual violence (particularly women from Shan state), traditional responsibility for family support, and lack of educational opportunities in Burma. Concurrently, they are pulled by employment opportunities that constitute a gendered demand in low-skilled, -status, and -wage occupations in factories and private households. Many of these work situations involve severe exploitation, confinement, work without legal or any pay, and violence. While many women consciously decide to migrate for sex work with the expectation of high earnings; a majority of the migrant workers in the Thai sex industry are there due to violence and other forms of coercion, deception, and abuse of power often defined as trafficking [1] , frequently at the hands of or in co-operation with Thai authorities, as will be briefly discussed later.
Burmese migrant workers, particularly those who are denied legal status, routinely experience a broad range of legal, physical, and psychological abuse from employers, authorities, and members of the majority Thai community. Women and girls are exposed to additional risks because of their gender, including sexual harassment and abuse, rape, unintended pregnancy, and unsafe abortion. Migrants, particularly women, are disproportionately vulnerable to HIV/AIDS and other sexually transmitted infections in Thailand due to their migrant status. [2]
The vulnerability of Burmese workers goes to the heart of issues like poverty, trade, labour rights, and globalisation. The expansion and increasing competition of international trade puts immense downward pressure on workers in both large and small corporations that engage in freewheeling competition to sell more to consumers, expanding markets, and enhancing profits. Burmese workers in Thailand are the easiest prey as they have a high threshold of exploitation and are willing to work long hours in unsafe conditions for wages well below Thailand’s minimum wage, as it is often better than the conditions at home. They enjoy little to no rights according to Thai and international human and labour rights standards, despite the fact that under Thai labour law, migrant workers and Thai workers are equal, with the exception that migrant workers are not able to form trade unions or act as union committee members.
Legal aspects
In 1996 the migrant registration process was initiated, and has changed nearly every year. The registration schemes have failed to attract a significant number of workers and employers, for example in 2003 only 288,780 eligible migrant workers held a work permit in Thailand. Under past migrant worker registration schemes, employers hold the work permit and give workers a photocopy that is legally useless, meaning many workers had no access to health care, were subject to deportation as their photocopy is invalid, and are subsequently subject to extortion and harassment by officials. Additionally, workers are generally unaware of the procedures and possible benefits of a work permit as information is in Thai and there are insufficient non-governmental organisations (NGO) and trade unions informing workers. Further, those that do operate have difficulty accessing workers. On the official side, Thai civil servants implementing registration schemes and promoting labour rights have no knowledge of Burmese languages, or interpreters, so information on workers’ rights and labour law reaches few migrant workers.
Under the new registration scheme which began on 1 July 2004, the 1.2 million workers who have registered for one year ID cards (not work permits) have reportedly experienced fewer problems with police and immigration, though accessing health-care is still difficult due to distances to hospitals/transportation, language, negative attitudes of health care providers, and lack of freedom of movement as many workers are only allowed to leave workplaces on certain days without paying a fine to the employer. Those who have not registered are even more vulnerable to abuse than before as the Thai government has adopted a zero tolerance policy for undocumented migrant workers.
As of late 2004, roughly 500,000 workers have registered for work permits, so again a vast majority of migrant workers in Thailand are more vulnerable to abuse and harassment due to their lack of legal working status. Although the current registration system is an improvement from past schemes, workers and employers still avoid it due to high costs/low benefit of work permits, and a lack of information on how a work permit could benefit them.
Thai labour standards
National security concerns are typically cited as rationale for policy toward migrant workers in Thailand, this is fuelled by widespread discrimination against Burmese. Yet it is impossible to explain how or why adherence to one of the most fundamental human rights – the right to form and join trade unions – could jeopardise Thailand’s national security. Section 30 of the Constitution, the so-called People’s Constitution, states: ‘All persons are equal before the law and shall enjoy equal protection under the law…. Unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, physical or health condition, personal status, economic or social standing, religious belief, education, or constitutionally political view, shall not be permitted.’
Section 45 states: ‘A person shall enjoy the liberty to unite and form an association, a union, league, co-operative, farmer group, private organisation, or any other group’. Yet the 1975 Labour Relations Act (LRA), Article 87, requires that the 10 persons who apply to legally register a union must be Thai nationals, and Article 85 says that private sector unions can only be formed legally in accordance with this law. A non-Thai can only be a member. LRA Article 100 states that all union committee members (who are the elected leadership of the union) must be Thai nationals from birth, and must be aged at least 20. These laws contradict the principles of the constitution, and violate several international labour and human rights standards to which Thailand is legally bound. Yet the apparent unconstitutionality of the LRA remains unchallenged.
Legally, migrants can join Thai trade unions, but a number of factors make it difficult for unions to take them on. Areas with many migrant workers, such as Samut Sakhon, Ranong, Mae Sot, and Surat Thani, have few or no unions, thus creating spatial constraints. A minority of migrant workers speak Thai or English, and few Thai union leaders speak English or a Burmese language well. In addition, there are cultural barriers between Thais and Burmese. Burmese workers are a high risk group given their shaky legal status (for the minority who have such status) and constant threat of deportation. Thai unions are constrained in terms of resources and networking, and even if resources were available, migrant workers generally lack knowledge and information regarding the role of trade unions. This is a major impediment for unions and human rights activists in general as Burmese in Burma, and now Thailand, have been oppressed and denied access to rights education for several decades. Recently, positive steps have been made in bridging the gap between unions and migrant workers, but significant obstacles remain. Future attempts to unionise Burmese members would surely be met with great resistance from employers, and, possibly, the government.
Despite migrants’ inability to form registered trade unions, many still seek to informally organise unilaterally within workplaces, and/or with the assistance of underground Burmese unions and labour support organisations. But organising migrant workers is difficult. They often have only one day off a month, and are not always permitted to leave the workplace, making it difficult to contact others. In addition, employers regularly take advantage of their vulnerability and dismissal is often arbitrary, meaning that workers are unwilling to take any actions that may be risky. Following dismissal and in many cases preceding it, immigration officials are routinely called in by employers to deport both regular and irregular migrants. Time and again, when Burmese migrant workers representing a minimum 15 percent of workers in their workplace have applied to alter their conditions of work, have demanded their rights through informal collective bargaining agreements, organised walk-outs and wildcat strikes or have simply attempted to engage in dialogue over working conditions, they have been sacked and are usually deported.
There remains little political will to do anything for labour, Thai or migrant, by the current Thaksin Shinawatra government. Given the institutional and practical discrimination and labour rights abuses that migrant workers face, in the end a great portion of Thai workers in labour intensive sectors in Thailand are also affected as standards are set exceptionally low. Thus it is essential for Thai and migrant workers to overcome cultural barriers, which employers and authorities currently exploit for their benefit, and jointly demand the right of all workers in Thailand to freedom of association, to form trade unions, and adherence to labour standards.
Throughout January 2004, there were reports that those assisting migrant workers by calling for the enforcement of labour laws in Mae Sot were harassed and threatened. These threats reportedly included: [3]
• On 14 January an officer in the Tak Labour Protection Office relayed a message to the NGOs involved, telling them to stop trying to utilise the labour protection mechanism and to stop calling for the enforcement of the legal minimum wage, which, he reportedly said, is not enforced even for Thai workers. He warned NGOs that these methods were biased in the workers’ favour. He preferred negotiations between only the employer and the employees.
• Interviews with workers in Mae Sot suggested that some managers posted photographs of four of the NGO activists; workers are asked, one by one, if they know these people. Workers claim that some who answer positively were dismissed or harassed. Some workers claim that certain factory managers made death threats against those calling to enforce labour laws.
On 14 December 2004 state officers including Mae Sot police, immigration and labour department officers illegally searched the community Burmese worker centre in Mae Sot run by the Migrant Assistance Program (MAP Foundation) in co-operation with Yang Chi Oo Workers Association [YCOWA] and took all the complaint files lodged by the migrant workers… Mr A Salam (18), a volunteer interpreter of the MAP, was illegally arrested by these officers at the same time and charged with working without work permit, although he works on a volunteer basis. A Salam was born in Thailand and has legal entry status in Thailand, holding a Burmese displaced person card.
Mr A Salam reported that he has received a death threat phone call from an unknown person who threatened to kidnap and kill him if he did not stop his work [for migrant workers] on 16 December. He also reported that on 5 November there was an attempt on his life by three unknown persons while he was traveling back home in the evening. Those incidents against Mr A Salam are linked to his active role in the migrant workers’ complaints against employers. [4]
This intimidation of the interpreter is clear indication of workers’ inability to approach the provincial Labour Protection Department.
Additionally, the fact that the Labour Protection Department instigated the arrest of a legal, volunteer interpreter, a service which their office does not provide and is obviously essential to promote migrant workers’ rights, is a cynical act based on the discriminatory regulation that A Salam, who has spent his whole life in Thailand, is not ‘Thai’ and therefore cannot volunteer with an NGO.
The handful of registered migrant workers who successfully navigated the provincial labour protection department were able to access the Thai legal system, which is their right, but this system makes it difficult even for Thai workers to protect their rights; migrant workers thus have even less opportunity to successfully resolve workplace disputes if they go through courts, and to do so requires great courage. Employers also make use of the courts, but it is seen that this is often an attempt to buy time and thus to pressure their workers – Thai or migrant – to give up their fight and accept out of court settlements to the financial benefit of the companies.
In Mae Sot, Burmese workers have not legally registered any strike, though wildcat strikes are common. This is because workers feel that employers do not always negotiate in good faith or according to the labour law; even where strikes are legal, workers are often fired before the arbitration process is exhausted, thus, it is difficult to imagine migrant workers regularly utilising the legal system and legal strikes to successfully advance their claims.
The Mae Sot Authorities
Workers – Thai and migrant – say that the provincial Labour Protection Offices are generally ineffective, and migrant support organisations have often found them ineffective and unsympathetic. In addition employer organisations such as the chamber of commerce or the Federation of Thai Industries (FTI) actively seek to limit workers’ actions, particularly by limiting freedom of association and by colluding to keep wages low. Labour leaders in Mae Sot report that if these organisations discover their activities, they are often blacklisted, and find it difficult to work there again. Employer organisations are influential both in public relations in communities with high proportions of migrants, and in the case of Mae Sot appear to be influential with the Tak Labour Protection Office. It is worth noting that through early 2004 the FTI-Tak Chapter and the Labour Protection Office have shared the same building in Mae Sot, a building owned by FTI-Tak.
Federation of Thai Industries, Tak Chapter
According to the Federation of Thai Industries Web site, FTI, which is under the supervision of the Minister of Industry, it ‘…aims at strengthening the private sector institution which will help make industrialisation in Thailand more sustainable and synchronising with other ongoing national economic development processes as well as ensuring a proper protection of the national interest in the world economic environment’. (from:http://www.fti.or.th/Fti percent20Project/ex_orgintro_eng.aspx, downloaded on 6 September 2004)
The Tak province FTI is highly influential in Mae Sot in terms of co-ordinating employers’ efforts to ‘manage’ workers, by keeping wages low, and blacklisting strike leaders; NGOs report that their ability to work is constrained by FTI activities. Because its member businesses are major contributors to the local economy in Tak province, the FTI has considerable local media support. [5] In addition, the FTI is a part of the Joint Public-Private Sectors Consultative Committee headed by the Prime Minister, as one of the active members from the private sector to address economic issues.
In an interview with Thai Labour Campaign (TLC) staff on 29 December 2003 the FTI Tak Chapter president gave several reasons why he thought Burmese workers should not be paid minimum wage. He claimed that:
• Burmese workers are poor quality when compared to Thai and international workers.
• Migrant workers are paid below the minimum wage in various countries, particularly Taiwan, Hong Kong, and the US to justify below minimum wages in Thailand. [6]
• Employers in Tak have the right to make deductions for food and shelter etc. so workers do not receive the minimum wage.
• Employers prefer the target/piece rate system to a daily wage.
In the several hours of the meeting the FTI President did not speak of legal standards, only the desire of employers to keep wages low and his justifications for this.
On 29 December 2003, when TLC attempted to meet the Labour Protection Officer, the staff at the Labour Protection Office referred TLC to FTI to speak about the situation of striking Nasawat workers. The following day, in a meeting with Mr Kwuang Saijem, the Tak Labour Protection Officer at the time and office neighbour of FTI, his comments were reminiscent of those by the FTI President. He stated that wages were low because of deductions for food, lodgings etc, reiterated that other countries pay migrants below the minimum wage, and added that employers cannot pay minimum wages because of economic hardships. When asked why workers only receive about seven baht an hour for overtime (legally, it is 25 baht per hour in Tak), the officer stated that, as a recent appointment, he had not had time to look into this matter, adding that his time had been consumed in dealing with the numerous strikes in Tak since his October 2003 arrival.
When questioned as to why workers were not able to hold the original work permit, which Thai law requires of Burmese workers, he said workers tend to lose permits so it is better for employers to hold them. He also stated that if workers have the original they would be subject to blackmail, so the employer is therefore protecting the workers. [7]
In a document dated 21 December 2003, FTI Tak requested that the Tak governor investigate the operations of NGOs in the area - YCOWA and the MAP Foundation for the Health and Knowledge of Ethnic Labour - as FTI claimed that NGOs were inciting workers to strike and causing damage in Mae Sot. It is reported that the management of Taiwanese owned Value Trend Co initiated the request. The governor ordered an investigation. A few days afterwards men identified by workers and NGOs as local thugs and holding photographs of Moe Swe and A Salam of YCOWA, asked workers in several factories where they were. Shortly afterwards the two leaders of YCOWA went into hiding, fearing for their safety. Meanwhile, the Tak Labour Protection Officer acknowledged the threat to Moe Swe and A Salam, but claimed that their plight was public, so many people were watching the situation.
Mae Sot police - Abuse of migrant workers
Thai police are infamous for corruption; it is also reported that they engage in widespread abuse of migrant workers (see Phongpaichit and Piriyarangsan, 1996; Human Rights Watch, 2004). Migrant workers avoid the police at all costs and simply do not contact them for assistance unless forced to do so; NGOs in Tak report considerable reluctance to ask police for assistance. One of the reasons for this is that they consider that the police are complicit in human rights violations - migrants regularly report that police and immigration officials are the main source of violations and extortion against them, claiming that police and immigration officials take bribes from employers and extort money from workers whenever possible. Allegations that the police traffic drugs and women for sex work (among a range of serious human rights violations) are not uncommon. [8]
Burmese children on the Thai side of the border with the Friendship Bridge in the background. There are schools for Burmese children, but there are also many child workers in Mae Sot
Photo: Dennis Arnold
On 29 January 2004 the United Nations Secretary-General received a written statement (E/CN.4/2004/NGO/22) by the Asian Legal Resource Centre (ALRC) calling on the Thai government to ‘ensure that domestic law is upheld with regards to migrant workers, legal or illegal, as it is to Thai citizens’, among other demands. The statement identifies many of the day-to-day problems migrant workers face in Thailand, and identifies their lack of basic rights and the violence to which they are subjected. Following are excerpts from the statement: [9]
“Murders, rapes, abductions, torture and other abuses of Burmese migrant workers in Thailand have occurred with alarming regularity for many years, particularly in the Mae Sot district of Tak province, but for a long time only cases of extreme brutality were ever made public. In January 2002, for instance, the bodies of at least 21 persons were found in the Mae Lamao stream. No one has ever been brought to account for that atrocity…In the past year, abuses have increased, as impunity has spread in Thailand with new government policies favouring extra-judicial killing [in the war on drugs..], and because migrant worker’s rights have been further curtailed… …In 2003, the ALRC brought its concerns to the attention of the Special Rapporteur on the human rights of migrants, noting that immigration officials, police, and other officials in Thailand abuse illegal migrants at time of arrest, in detention centres, and during deportation. These abuses include extortion, physical and sexual assault, and murder. These activities by the police lead others to commit the same offences without fear of the consequences…”
Moving toward solutions
The organisational and political weakness of migrant workers in Thailand is in stark contrast to that of the authorities, police, and employers. This imbalance makes it difficult for workers to organise to protect and promote their rights. The handful of Burmese organisations attempting to assist workers is limited because of their problematic legal status in Thailand and the intense pressure preventing them from operating without fear of reprisal.
It is obvious that migrant workers in Thailand, particularly the Burmese, bear a lot of pressure from nearly every direction, both Burma and Thailand. Denying the right to freedom of association and right to organise trade unions effectively pulls out attempts by migrant workers to improve their situation at the roots. This is a problem which must be addressed within Thailand by Thai and migrant workers and their leaders, along with pressure from the regional and international levels. That migrant workers are often denied assistance from local labour protection officials, or that assistance is not given in good faith, is another major obstacle for the promotion and protection of their rights. Effective mechanisms must be effected, like translation and legal services and distribution of educational materials about workers’ rights, in migrant workers’ languages. If local labour protection officials cannot deal with the scale of the problems, as may be in Mae Sot (some 100,000 workers are serviced by a labour protection office with three to four staff), then Thai officials, whether at provincial or national level, need to admit the deficiency and correct it.
Finally, the Thai economy and manufacturing base competes with other nations in the region for exports and FDI, increasingly through bi- and multi-lateral free trade agreements. If Thai labour standards suddenly improve, competitive advantage for labour intensive, low value added sectors would be weakened if not lost. Weakening or ending the corporations’ ability to scour the globe for the cheapest producers is part of a goal that provides the only sustainable solution for migrant workers.
It is worth noting that the traditional gap between migrant support organisations and workers, and Thai unions and labour organisations has been reduced in the last year or so. This, in combination with greater advocacy for migrant rights – by Thailand’s Human Rights Commission, international and global trade unions, academics in Thailand and the region, governments, and human and labour rights organisations both in the region and internationally – is creating space and the potential for greater transparency and respect for labour rights and adherence to labour laws and standards. It also enhances the ability of migrant workers to organise and successfully improve work conditions, as a few cases in Mae Sot have proven.
Notes
1 Physicians for Human Rights (2004) No Status: Migration, Trafficking & Exploitation of Women In Thailand. Available at www.phrusa.org
2 Ibid. Women are also more vulnerable to HIV than men due to the physiological/sexual nature of women - women are eight times more likely to contract HIV than men during unprotected sex than vice versa.
3 For details, see http://www.thailabour.org/news/index.html-nasawat info release 5, which reproduces an Action Network for Migrants Information Release.
4 For details see http://www.ahrchk.net/ua/mainfile.php/2004/898
5 When Thai Labour Campaign (TLC) staff visited the FTI office in December 2003 a local TV reporter was there aggressively defending employers’ actions in Mae Sot.
6 Except for domestic workers, there is no minimum wage in Hong Kong.
7 This makes no sense. As previously mentioned, workers are subject to deportation, arrest, and extortion when they hold only a photocopy of the work permit.
8 There are numerous press reports on these matters. For details see reports by GlobalSecurity.org (http://www.globalsecurity.org/military/world/war/thai-drug-war.htm), Human Rights Watch (http://www.hrw.org/doc?t=asia&c=thaila), and Amnesty International (http://www.amnesty.org/ailib/aireport/index.html).
9 The full ALRC statement to the UN Commission on Human Rights 60th Session is available at: http://www.alrc.net/pr/mainfile.php/2004pr/61/