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Summary
In June 2017, the Thai Royal Ordinance Concerning Management of Employment of Migrant Workers came into force. It triggered widespread confusion and panic among employers and workers alike, especially caused by excessive penalty provisions and due to a lack of consultation with stakeholders prior to the enactment of the Royal Ordinance and the hastily manner in which it was prepared. One week after the promulgation of the Ordinance, there were reports of tens of thousands of migrants leaving Thailand and significant labour shortages emerging for employers. In response, the Thai Government suspended the enforcement of problematic provisions and initiated a series of public hearings feeding into a review process aimed to amend the Royal Ordinance, and sought technical support from the ILO to assist in the amendment process. During the review period (July 2017 – February 2018) the ILO provided four rounds of technical comments in response to various drafts of the revised legislation in response to requests from the Ministry of Labour. The revised version of the Royal Ordinance Concerning Management of Employment of Migrant Workers was adopted in March 2018 and includes a number of provisions in line with international labour standards and good practices, including the following:
- Zero recruitment fees charged to migrant workers (drawing from the ILO’s Private Employment Agencies’ Convention (No.181)). Note that the definition of “recruitment fees” still needs to be defined in secondary legislation;
- No prison sentences imposed on irregular migrant workers;
- Written contracts are to be provided in the language of migrant workers (a provision that goes beyond protections offered in the Labour Protection Act);
- Increased flexibility for migrant workers to change employers;
- Prohibition on the confiscation of migrants’ identification documents;
- Removal of housing zones that restrict migrants’ freedom of movement;
- Appointment of a tripartite committee to oversee migration policy.
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Benefit and Impact
The 2018 Amendment of the Royal Ordinance addressed most of these concerns and appears to have created a more conducive environment for migrant worker recruitment. One outstanding concern is that while the Royal Ordinance adopts the principle of zero recruitment fees payable by migrant workers, it does not define what constitutes ‘recruitment fees (although it explicitly prohibits agencies bringing in migrant worker to charge fees for their services to migrant workers) not to be paid by migrant workers’ and instructs that this needs to be further elaborated under secondary legislation.
As yet, no impact assessment of the legal changes is available. Nevertheless, the normative relevance and impact of ‘zero fee’ legislation should not be underestimated. Combined with credible law enforcement and regular assessment of impact more proof of impact may emerge.
Social dialogue is enshrined within legislative implementation with a tripartite committee appointed to oversee migration policy.
Labour rights are enshrined in the legislation that was adopted to the benefit of migrant workers. The legislation reflects ILO Conventions No. 29 (with respect to freedom of movement) and No. 181 (with respect to non-payment of recruitment fees by migrant workers), the UN Guiding Principles on human rights and human trafficking, the ILO’s indicators of forced labour and a commitment to social dialogue.
Key Lessons
Through its tripartite structure, the ILO has provided technical support to ministries of labour, workers and employers organizations since it was founded in 1919. The adoption of national labour laws and regulations is an important means of implementing International Labour Standards, guaranteeing Decent Work and promoting the Rule of Law. As they regulate constantly evolving employment and industrial relations, labour laws are subject to regular assessment and reforms. Under the ILO Constitution, the Office is committed to extending its advisory services to Member States and to assist tripartite constituents in assessing and, where necessary, framing or revising their national labour laws. The ILO Office provides technical advice based on international labour law and comparative labour law best practices. Throughout its long-standing partnership with Thailand’s Ministry of Labour, the ILO has been asked to provide technical comments on a large number of legal frameworks.
The ILO process grounded in longstanding norms, an internationally-agreed regular process and supported by technical expertise and longstanding partnerships with the ministry of labour had built mutual trust and respect which was essential in making it likely that feedback was acted upon
Recommendations(if the practice is to be replicated)
- Ensuring involvement of key stakeholders including workers and employers organizations, civil society organisations, migrant workers and their support groups, academia etc. in dialogue on the draft law, through workshops, public hearings etc., is an important way to ensure broad-based consultation.
- In future updates of the law, the specific protection needs of women in labour migration should be taken into consideration and reflected as appropriate.
Innovation
After borders having been closed for almost two years due to the ongoing COVID-19 pandemic, in late 2021, Thailand decided to resume labour migration under the MOU process. As part of this process, the Ministry of Labour developed the Guidelines on how to implement the MOU process with measures to contain COVID-19 which were approved by the Centre for Covid-19 Situation Administration (CCSA) on 12 November 2021. These Guidelines stipulates that in addition to the regular processes that applies for labour migration under the MOU process with neighbouring countries, a set of COVID-19 specific steps and requirements had been added. These include requirements for COVID-19 tests, a minimum of one week quarantine upon arriving in Thailand, purchase of a specific COVID-19 health insurance. Importantly, the Guidelines clearly states that all these COVID-19 related recruitment costs must be borne by the employers (and not be passed on to the workers). This is fully consistent with ILO’s General Principles and Operational Guidelines for Fair Recruitment (which states that no recruitment fees or related costs should be charged or otherwise borne by workers or job seekers) and is a clear indication that ILO’s continued policy advocacy around issues related to fair recruitment is having impact.
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*References to Kosovo shall be understood to be in the context of United Nations Security Council resolution 1244 (1999).