On 11 April 2008 Mrs. Noom Maisaeng, a Shan migrant worker who was disabled as a result of an accident during construction work was escorted to Chiang Mai Administrative Court by staff from the Human Rights and Development Foundation (HRDF) together with two friends who are also Shan construction workers. Their purpose was to file a complaint to the court asking for withdrawal of Order Circulated by the Social Security Office (Document number 0711/ 751) which was released on 25 October 2001.
The order forbids paying compensation to migrant workers if they enter the country illegally. Mrs. Noom appealed to the Compensation Committee after her accident but was refused by the committee based on the order. Her appeal to the administrative court is to challenge the order as unlawful and discriminatory to migrant workers.
During the appeal process, Mrs. Noom was supported by Mr. Wisut Manowong, an official from Friends of Women Foundation and Mr. Anucha Meesap, the President of the Gems and Jewelry Trade Union.
Filing the appeal was difficult since Mrs. Noom is disabled and had use a wheelchair. The entrance to the administrative court provides no pathway for wheelchairs so her friends had to carry her and the wheelchair up to the court.
The documents prepared by Mrs. Noom were received by an Administrative Court official. Mr. Sumitchai Hatasarn, Director of the Centre for Rights Protection and Community Rehabilitation, acting as Mrs. Noom’s lawyer, said that the maximum time that the court can take to decide to hear the case is one month.
Mr. Sumitchai said that in practice migrant workers do not get any labor rights protection, but if they enter into the Compensatory fund process, they will get more protection. It means that if they encounter accidents, they will be guaranteed to get compensation. If the administrative court agrees to take up this case, the protection given to them would be better and in line with the human rights principle.
Mr. Sumitchai said further that before the appeal to the Administrative Court, complaints had been sent to many relevant agencies such as the Social Security Office (SSO). There had also been attempts to negotiate and appeal to the previous Labour Minister and the National Human Rights Commission, but they all maintained previous practice. “We are therefore calling on the Administrative Court to make a final decision whether the order of the SSO is correct and follows principle. If the outcome is positive to us, it will have a positive impact for migrant workers as it will guarantee greater human security for them. Many people do not know that many migrant workers are killed in work accidents and do not get compensation.
| Long Struggle of Woman Migrant Worker from Shan State Compiled from the information from Human Rights and Development Foundation (HRDF) The Accident Mrs. Noom Maisaeng, a 36-year old migrant worker from Shan State, Burma is allowed to live and work in Thailand legally under the Thai government plan to register migrant workers. On 4 December 2006, Mrs. Noom was working on a construction site at the Shangri-La hotel. A sling broke, sending a cement hopper weighting about 300 kilograms from 12th floor of the building. This broke into pieces, and the largest piece hit Mrs. Noom working on the 2nd floor. She was severely injured with a crushed spinal cord, broken ribs, torn diaphragm, and punctured lung. Mrs. Noom had to stay at Maharaj hospital for almost 11 months to recover using health insurance for migrant workers. As a result of the accident, she is 70% disabled and paralyzed from the waist down. Demand for Compensation Staff from HRDF helped Mrs. Noom to appeal for compensation from the Chiang Mai Social Security Office (SSO) in March 2007, but the official at the SSO declined to receive the appeal, giving the reason that Mrs. Noom entered the country illegally therefore was not eligible for the compensation fund. However, only after the HRDF staff explained that Mrs. Noom had the right to receive compensation under the 1994 Compensation Fund Act, the SSO staff agreed to accept the complaint. The SSO then ordered the employer to pay compensation to Mrs. Noom to the amount of 2,418 baht a month for 15 years. After a doctor certified that Mrs. Noom will be permanently disabled, she appealed to the Compensation Fund Committee against the order of the Chiang Mai SSO to deny her compensation. It is the duty of the SSO to pay compensation but that responsibility was passed to the employer. The appeal to the Committee is to confirm the rights of migrant workers to receive compensation for work-related injuries. In the case of Mrs. Noom, she should be given compensation from the Compensation Fund directly and transparently according to the 1994 Compensation Fund Act (See the document)
Disputed Social Security Office (SSO) Order After that the SSO denied the appeal of Mrs. Noom by referring to the Order Circulated by the SSO (Document number 0711/751) dated 25 October 2001. The case of Mrs. Noom therefore has become a case study of the systematic discriminatory practices towards migrant workers by the Ministry of Labour. This appeal to the Administrative Court is to counter the order since it is seen as an administrative action that is unlawful and discriminatory. The order from the SSO (number 0711/751) outlines the criteria and documentation that migrant workers need to be eligible for compensation from the compensation fund for work-related injuries: The migrant worker must be registered and have a work permit issued by the authorities together with a passport or migrant worker identification card; The employer must contribute to the Compensation Fund at not less than the minimum wage; and The migrant worker needs to make tax payments to the Thai government. If the migrant worker with work-related injuries cannot produce the documents listed above, the employer is responsible for the payment of compensation. Migrant workers can request a short-term permit to stay in Thailand from the Ministry of Interior (Document number 38/1) and can request a work permit from the Ministry of Labour. However the SSO insists that migrant workers need to hold a passport or identification card to be able to access the compensation fund. Almost 2 million migrant workers in Thailand, including Mrs. Noom who came from Burma, do not have a passport or migrant worker identification card. Another argument that the SSO uses to reject the right of migrant workers to receive compensation is the requirement that their employers contribute to the Compensation Fund according to the law so that the fund can be used to pay employees. However the SSO does not legally force the employers of migrant workers to contribute to the Compensation Fund. The 1994 Compensation Act together with the Ministry of Labour Decree on the categories, size, and localities of the firms that must contribute require that 1) an employer with more than one employee in any area in the kingdom contribute and 2) SSO has the duty to collect contributions accordingly . Appeal to the Administrative Court Mrs. Noom and two Shan construction workers therefore submitted an appeal to the Administrative Court on 11 April 2008 asking the court to nullify the SSO Order number 0711/251 for these reasons: The Order of the SSO denies the rights of the majority of migrant workers in Thailand. It is unlawful and contradicts the 1994 Compensation Fund Act, which is the governing law. The Order denies the rights of migrant workers to access the Compensation Fund. It is an administrative action which discriminates against migrant workers. It contradicts the principle of equality in the Constitution of the Kingdom of Thailand, and in the International Convention on the Elimination of All Forms of Racial Discrimination (1965), and the International Labour Organization Convention No. 19 (1925), both of which Thailand has the obligation to follow and has ratified. The Ministry of Labour has ignored the decision of the National Human Rights Commission calling for the withdrawal of the Order as a discriminatory act that prevents migrant workers’ right to access the Compensation Fund. Work-related accidents, injuries, and fatalities among migrant workers in Thailand continue to increase day by day. The work of migrant workers do in the industrial sector is dirty and dangerous. When migrant workers fall victim to work-related accidents or illness relating, they usually do not demand their rights. This is because they lack knowledge of their basic rights and the confidence to access those rights. Employers and the SSO also usually reject demands for compensation from migrant workers on the grounds of their nationality and their lack of identification cards. It is therefore essential that the Administrative Court issue an ruling to the SSO calling on the organization to create a more transparent working procedure to serve migrant workers who are victims to work-related accidents and illness. In this way, migrant workers will rightfully get compensation according to their rights enshrined under the 1994 Compensation Fund Act, the constitution, and other international laws. |
Translated by Pokpong Lawansiri
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