Thailand Anti-Trafficking Outlook Vol.1 |ARCM Thailand

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Forced Labor as a Form of Human Trafficking

Siriwan Wongkiatpaisan* a Human Rights Lawyer at SR LAW (Social Responsibility Law office) email: srlaw.srlaw@gmail.com

The Universal Declaration of Human Rights specifies that “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” Thailand has campaigned against the use of child labor and forced labor, and has passed Penal Code punishing those who use child or forced labor, and Anti-Trafficking in Persons Act B.E. 2551 prohibiting human trafficking.

I have worked as a lawyer on cases of human trafficking for over 15 years and I have collaborated with the Ministry of Social Development and Human Security and non-governmental organizations who work on labor issues. There are many different dimensions of human trafficking, including prostitution, coerced labor on deep-sea fishing

boats and in shrimp processing factories, forcing under-age girls to work in slave-like conditions in people’s homes, among other types of coerced labor. In litigating these cases I have acquired an in-depth understanding of the situation and laws related to the full range of human trafficking, forced labor and services in human trafficking.

Article 4 of the Anti-Trafficking in Persons Act B.E. 2551 defines “forced labor or services” as compelling the other person to work or provide service such person in fear of injury to life, body, liberty, reputation or property, of such person or another person, by mean of intimidation, use of force, or any other means causing such person to be in a state of being unable to resist.

When probing more deeply, the meaning of “forced labor or services” has three components:

There is a perpetrator who exploits another person in order to extract labor or services;

There is a victim who is fearful of being harmed or placing others or property in danger;

There is a method of coercion by threat of harm to life, body, freedom, reputation, or property of the victim or related person(s); threats of any kind are those which include threat of violence or placing the victim in a

situation which they cannot refuse, and these are considered punishable offenses under the Criminal Code.

Forced labor is work that is coerced or “not voluntarily engaged in” by the worker. In some cases, a person may apply for a job directly by themselves, but then become a victim of human trafficking afterward by being forced to perform work that they did not consent to. The situation becomes coercive when there is threat of harm if the work is

Vol. 1/2015

Thailand Anti-Trafficking Outlook is a newsletter published occasionally by the Asian Research Center for Migration (ARCM), Institute of

Asian Studies (IAS), Chulalongkorn University to disseminate information and knowledge to the public about anti human trafficking issues and

efforts undertaken in Thailand and beyond. This newsletter is also available online from www.arcmthailand.com

Photo Credit: Labour Rights Promotion Network (LPN)

Thailand Anti-Trafficking Outlook Vol.1 |ARCM Thailand

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not performed, or the threat that the employer will not enable the worker to return home, or the employer confiscates the worker’s passport to prevent the worker from fleeing, physically abusing other workers as a warning to a reluctant employee, or withholding of wages or paying a fraction of the agreed wages as a form of bondage to pressure the worker to stay on the job. The three components of forced labor or services apply to a situation in which the worker does not have freedom of

choice whether to perform the labor or not, but is compelled to perform the labor because they are in a coercive situation.

In determining whether forced labor is a form of human trafficking, the screener needs to understand the distinction

between permissible labor practices in accordance with the Labor Protection Act, and forced labor which constitutes

human trafficking.

Differences between Decent Work and Forced Labor

Decent Work Forced Labor

The worker has the freedom to decide by themselves what work they do, free of deceit, coercion or force.

The employer has authority and control over the employee only during the limited scope and duration of the work hours.

The conditions of the work do not violate labor law.

Punishment is conducted in an orderly way, and the amount of punishment is fair and does not harm life, body, or freedom, and does not violate the terms of the employment or the law.

The worker has the freedom to resign from their job at will.

The worker does not have the freedom to choose the work they do, or are deceived or denied access to information about the work, or are in a coercive situation where they have to perform work involuntarily.

The worker is forced to work under threat or use of violence, or deprived of rights and freedom without due cause. The worker is not able to lead an independent life, and must exist under the authority of another.

The terms and conditions of the work violate the law. This may apply to confiscation of the worker’s passport by the employer, confiscation of wages, pressure or prevention of the worker from contacting others outside the workplace, forcing the worker to work very long hours or without days off, withholding wages or compensation, paying inappropriate wages or compensation, or paying only a fraction of the agreed wages.

The punishment of the worker violates the law. There is control and punishment by use of threats or harm to the worker’s physical or mental status, or the worker’s freedom is restricted.

The employer alone determines whether a worker can resign or not. Source: Handbook on Prevention and Suppression of Human Trafficking in Labor. Foundation for Child Protection. First printing,

2012, pp 59-60

The law on “labor employment” specifies that an employer has the right to use the labor of the employee as per their reciprocal agreement; both parties are obligated to comply with that agreement. The employer must pay the employee for their work throughout the duration of their employment. The worker must perform the work assigned by the employer, and obey and follow orders of the employer.

Employment generally means that the life of the worker is restricted to some extent as part of the terms of the employment agreement. For example, the employer may require the worker to appear for work at a certain time and until a certain time as specified by the employer. The worker also needs to comply with the rules set by the employer. The employer has the right to punish the worker if the worker does not comply with the workplace rules.

In any case, the employer is prohibited from making threats to incite fear of harm to the worker’s life, body, freedom, reputation, or property of the worker. The employer is prohibited from restricting the freedom of movement of the worker or incarcerating the worker, whether by action of the employer or the workplace security personnel. The employer is prohibited from inflicting physical punishment on a worker. If the employer makes threats, restricts the independence and freedom of movement of the worker, or inflicts physical punishment on a worker, those actions constitute a violation of the law. Even if the employer allows the worker to watch TV, provides medical care for the worker when ill/injured, allows the worker to choose what food to eat, or provides compensation for the work done, this does not permit the employer to incarcerate the worker, nor do those actions absolve the employer from violation of the law in accordance with Supreme Court Ruling 887/2518 (B.E.): If the employer is found to commit the above action in order to benefit from the labor or services of the worker, then the employer is guilty of “forced labor or services.”

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Infographics: Example of Court Cases on Human Trafficking The following infographic gives the court trials on human trafficking in one Thai province during 2012-2015. A total of 26 cases are divided into three categories of human trafficking: child prostitution, begging and labor. The following infographic also gives the breakdown of offender’s nationalities, length of trial and court verdicts.

The Rohingyas in Thailand

In early 2015, 7 Illegal camps were found in Southern Thailand containing mass grave of people trafficked

36 bodies found (21 males, 5 females and 10 unidentified)

313 illegal migrants in the camps, of whom: o 64 were Trafficking victims o 179 had prosecution orders, of which 48 have

completed cases and await repatriation o 70 did not have prosecution orders, all awaiting

repatriation

Of the 170 illegal migrants with prosecution orders, 48 have finished their cases and await repatriation

Of the 54 victims of human trafficking, 50 are Rohingya, 14 are Bangladeshi. All are currently under court trial

Of 84 arrest warrants issued, 51 suspects arrested and 33 are still at large

Checkpoints and increased community policing have been set up in nearby areas

Source: Presentation titled “How Irregular Movement of Persons related to Human Trafficking and People Smuggling” by Thailand SOMTC (Senior Official Meeting on Transnational Crime)

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