COM 05/2016

Review of Thailand’s Migration Worker Management Policy under the ASEAN Community

Papawadee Tanodomdej, Research Fellow, the International Institute for Trade and Development (ITD)

The fact that Thailand has been issued a “Yellow Card” by the European Union (EU) Commission for not taking sufficient measures in the international fight against illegal fishing (Illegal, Unreported and Unregulated fishing, IUU) threatens Thailand’s fishery industry, the world’s third-largest seafood exporter. The “Yellow Card” is a warning that Thailand needs to clean up its poorly regulated seafood industry that has been found to exploit migrant workers.[1] Since April 2015, the government has put in place several measures to tackle illegal (IUU) fishing such as labor laws preventing persons under the age of 18 from working on boats and in seafood processing factories, and established a common centre with a remit to track every fishing vessel in Thailand’s fleet of about 42,000 vessels through a new registration and monitoring system. However, the roots of existing problems lie in the fragmentary character of Thailand’s labor migration policy. Moreover, Thailand is a member of the ASEAN Community whose ambitious goal in its economic pillar is to create a free-flow skilled labor market. Thailand’s labor migration policy, hence, takes into account not only its demand but also its obligations towards the ASEAN Community. This article will address the current situation of migrant workers in Thailand and review Thailand’s labor migration policy to investigate whether it aligns with the ASEAN Community goals, and eventually provide suggestions for the labor migration predicament.

I. Current situation of migrant workers in Thailand

The term “migrant worker”, according to Article 2 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national or do not have a usual residence. In general, the term “migrant worker” does not de- fine a worker’s skill level. Migrant workers, there- fore, include low-skilled migrant workers as well as high-skilled “expats”. However, in this article, only the issue of low-skilled migrant workers will be dis- cussed.

The statistics from the office of foreign worker administration shows that in May, 2016, there were 1,389,002 documented migrant workers from ASEAN countries in Thailand. The number is composed of 1,366,544 low-skilled migrant workers who mostly came from Myanmar, Lao PDR and Cambodia, and 22,458 semi-skilled migrants mostly from the Philippines, Malaysia and Singapore[2]. However, the actual number of migrant workers in Thailand is unlikely to be quantified, given the fact that there are considerable numbers of irregular migrant workers being exploited in the seafood industry and other industries.

Among the pulling factors for the influx of mi- grant workers to Thailand are the different levels of development between Thailand and labor exporting countries as well as the gap of gross national income (GNI) per capita[3]. The dual economy of Thailand re- quires both semi- to high-skilled manpower in capital intensive industries, and low-skilled workforce in labor intensive industries. Despite the fact that 60% of the workforce in Thailand are low-skilled workers, Thailand faces a low-skill labor shortfall as fundamental education equips more and more graduates to become high-skilled workers.

Moreover, the migrant worker management policy has never reflected the actual demand of the country. Before 1992, foreigners were allowed to practice only 27 occupations pursuant to the Foreign Employment Act B.E. 2521. However, Article 17 of that Act stipulated the exception that the cabinet could approve a quota of migrant workers, also in other occupations, for a limited period due to labor-supply shortages. Article 17 is regarded as a fundament for the alleviation of strict laws banning migrant workers’ employment. Nonetheless, the cabinet resolution in itself is not a statute. It can therefore be easily modified according to the policy direction.

Between 1992 and 2012, the policy for allowing migrant workers to work in Thailand was erratically enacted as well as not strictly enforced. For instance, the attempt to legalize irregular migrant workers was conceived to regulate the problems of irregular mi- grant workers in the seafood industry, construction, agriculture and among housemaids. The legalization process was conducted through nationality verification (NV) at the provincial level. However, the con- sequences of the NV process were not completely successful due to the costs and inefficiency of the process between the countries of origin and Thai- land. As a result, many workers have not reported themselves and remain undocumented (irregular). The result of the incoherent migrant worker management policy has led to distrust and skepticism between Thai citizens and migrant workers who mostly come from ASEAN countries. Furthermore, it offered opportunities for human trafficking rings to extend their vicious business.

II. Labor migration policy

Despite the fragmentary nature of labor migration policy in Thailand, the management of labor migration can be categorized into 4 measures as follows.

A) Determination of reserved occupations

Thailand has enacted the annex to the Foreign Employment Act B.E. 2522 to reserve 39 occupations exclusively for Thai nationals including manual work; work in agriculture, animal husbandry, forestry or fishery; bricklaying, carpentry or other construction work; wood carving; shop attendance; auditing; haircutting; shoe and hat making; architectural work; garment making; guide or conducting sightseeing tours; office of secretarial work; and le- gal or lawsuit services. These reserved occupations are an instrument to limit the possibility of migrant worker employment. The list of reserved occupations was created in B.E. 2522 and has been updated from time to time. However, it is not compatible with social development and globalization. Accordingly, the determination of reserved occupations does not satisfactorily serve the national interest. In addition, this ineffective labor migration law cannot control the number of irregular migrant workers entering Thailand.

B) Registration of irregular migrant workers for temporary stay

The registration of irregular migrant workers started in 1992 with very limited coverage, by allowing employers in 7 provinces along the Burmese border to get irregular migrant workers registered. Only 706 migrants were reported and registered. These registered migrant workers were allowed to stay in Thailand for 1 year. In 1993, the registration was ex- tended to include migrant workers in Thai marine fishing boats in 22 coastal provinces with the same condition that the Thai employers needed to bring their migrant workers for registration. In 1996, there was another round of migrant workers’ registration in which the government issued a lenient measure related to the employment of illegal migrant workers from Myanmar, Lao PDR and Cambodia for temporary work. Their stay was legalized and extended up to 2 years. In addition, the types of works permit- ted to be performed were increased to cover mining, manufacturing, agriculture, construction and house- maids. As a consequence, 372,000 migrants were registered of which 263,782, or 87 percent, were from Myanmar.

In 1998, the government issued a quota of 158,253 migrant workers to be registered. As a result of the economic crisis, the government also repatriated certain migrant workers to alleviate the unemployment. Moreover, the government wanted to manage the irregular migrant workers systematically. In 2001, the national committee on irregular migrant worker management was established to regulate the irregular migrant workers for longer terms. It was the first time that irregular migrant workers in 76 provinces were allowed to be registered. The registration fee was 4,450 Baht which was equivalent to one month’s salary. As a consequence, 586,000 migrant workers were documented. Still, one year later, only 350,000 migrant workers re-registered. The number of registered migrant workers constantly dropped every year. This was due to problems and difficulties in the process such as unofficial changes of employers, lay-offs of employees, high labor turnovers in agriculture and marine fisheries, and perceived high registration costs.

C) Legalization of irregular migrant workers

The registration of irregular migrant workers de- scribed above was not conceived to legitimize their stay as they have entered Thailand illegally. The purpose of registration is to document the number of irregular migrant workers in Thailand as well as to regulate them.

Pursuant to the Bangkok Declaration on Irregular Migration in 1999, the government of Thailand has concluded a bilateral agreement known as the Memorandum of Understanding (MOU) with Cambodia, Lao PDR, and Myanmar to bring legal labor into Thailand and to legalize the irregular migrant workers. After the MOU was signed with Lao PDR in 2002 and with Myanmar and Cambodia in 2003, the aim to legalize irregular migrant workers was manifested through the nationality verification procedures. The cabinet resolutions between 2004 and 2012 demanded irregular migrant workers to register and undergo the nationality verification process in order to identify their nationalities. They had to go through medical check-ups for the purposes of public health. The failure to pass the medical test led to deportation, while passing the test led to the grant of a work permit as well as medical social welfare comparable to that of the local population.

With regard to the nationality verification process, certain problems arose for irregular migrant workers from Myanmar. These issues were related to the country’s precarious political situation characterized by a struggle between various minority communities and the Myanmar authorities. Migrant workers from minority communities were unlikely to register as there was a rumor that, through the nationality verification process, the minorities might be identified as non-Myanmar nationals because, according to the rumors, the government wanted to eradicate them. Hence, the outcome of the MOU was not completely successful due to the delayed process between the sending and receiving countries. As a result, many irregular migrant workers, especially those from Myanmar, did and do not report themselves. They remain irregular.

D) Legal import of labor from labor exporting countries

In addition to the legalization of irregular migrant workers, the MOU stipulates the import of labor from the MOU parties via licensed manpower agencies which were agreed by the importing and ex- porting countries. The licensed manpower agencies are responsible for taking care of migrant workers’ rights and the sending process.

The process of legally importing labor starts with the request of a Thai employer at the Ministry of Labor. The Thai employer needs to indicate the quantity of migrant workers needed. The department of employment will then issue a labor quota certificate. After that, the Thai employer can submit the labor quota certificate along with other related documents according to the MOU to the licensed manpower agency in the exporting country. The licensed man- power agency issues the permit after consultation with the Ministry of Labor in its country. The Thai employer will then receive the list of migrant workers along with the permit so that he/she can report to the department of employment. At the same time, the migrant workers can apply for a visa at the Thai embassy, furnishing the documents from the Thai employer. The legally received migrant workers are able to stay in Thailand for 2 years. This period can be extended up to another 2 years (maximum of 4 years in total). They are entitled to labor rights and social welfare equivalent to that available for the local population.

III. ASEAN Community obligations related to Migrant workers

The management of migrant workers concerns both economic and social perspectives. Regarding the ASEAN Community which consists of three pillars: (1) ASEAN Economic Community (AEC) (2) ASEAN Political-Security Community (APSC) (3) ASEAN Socio-Cultural Community (ASCC), the management of migrant workers pertains to all the three pillars.

In the economic perspective, only the management of high-skilled labor is mentioned in the AEC blueprint. One of the AEC cooperation areas is human resources development and capacity building, allowing eight profession categories to circulate across ASEAN countries according to the Mutual Recognition Arrangements (MRAs). These MRAs establish common standards for skilled professionals, namely; nurse, doctor, dentist, accountant, engineer, architect, surveyor, and tourism manpower. The professionals who meet the standards set by the MRAs can apply for a recognition of their standard at the competent authority in their country of origin. After that, they can apply for jobs in ASEAN countries, while the domestic regulation is still applying to them. However, the context of low-skilled mobility across ASEAN countries is not discussed in the AEC blueprint.

Under the auspice of the APSC, the context of mi- grant workers emerges in human rights perspectives. As the APSC is determined to fight against trafficking in persons, many declarations have been signed by ASEAN member countries including the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW). The ACMW calls all ASEAN member states to prevent abuses, discrimination and exploitation of migrant workers. Furthermore, it is suggested that the ASEAN member states ratify and effectively fulfil the core International Labor Standards laid down in the 1998 ILO Declaration on the fundamental principles and rights at work including the right to join and form unions. Nonetheless, the ACMW does not take into account the particular characteristics of migrant workers in ASEAN which are mostly undocumented. Thus, un- documented migrant workers are the most vulnerable but less protected.

IV. Policy suggestion

Although Thailand’s labor migration policy attempts to manage the labor demands of Thai industries and the influx of migrant workers from ASEAN countries, the policy is not successful as it lacks effective enforcement and integrated policy planning. Furthermore, the sincerity of labor importing countries to tackle labor migration-related problems needs to be demonstrated through the protection of migrant workers, tailored to their particular characteristics.

In this regard, the following recommendations to enhance the effectiveness of labor migration management shall be made:

1. Labor supply and labor demand for each industry should be investigated by government, private and academic research institutes. Statistics should be collected to provide the number of labor migrants in any particular industry. This data will be used to set a suitable tax levy. Moreover, the data collected is a tool for setting labor migration policies.
2. As Thailand attempts to overcome the middle-in- come trap, the low-skilled migrant workers shall be equipped with better skills. Hence, work training is recommended as it can ease the barrier in the working environment between migrant and local workers. The work training can be done in cooperation projects between the government and private sectors.
3. Migrant workers shall receive equal pay for equal work. Even if workers have no skill and low productivity, employers shall not discriminate against them. Migrant and local workers shall be guaranteed equal rights at work.
4. As labor protection and welfare systems are necessary elements to achieve an equal treatment be- tween migrant and local workers, the right for legal migrant workers to receive social security protection should be defined clearly.

[1] Guardian.  Slavery  and  trafficking  continue  in Thai  fishing  industry.  https://www.theguardian.com/global-development/2016/feb/25/slavery-trafficking-thai-fishing-industry-environmental-justice-foundation

[2] Office of Foreign Worker Administration, Ministry of Labor. Statistics of Documented Migrant Workers from ASEAN in May 2016 [Online], retrieved from http://wp.doe.go.th/wp/images/statistic/aec/59/aec_may59.pdf.

[3] Aldaba, T. Fernando. 2015. The Impact of Economic Integration on Labor Migration in ASEAN [Online], retrieved from http://www.businessmirror.com.ph/the-impact-of- economic-integration-on-labor-migration-in-asean/.