Myanmar - Thailand: Implementation and enforcement

The machinery for enforcement of the legal-regulatory framework is weak in both countries, while corruption is endemic. In Myanmar, there is inadequate government inspection machinery with respect to recruitment agencies. Inspections are rarely carried out. Investigation into complaints by workers is largely carried out by MOEAF. MOEAF undertaking this role creates an obvious conflict of interest - not only was it created as a federation of recruitment agents to further their interests (and registered as an NGO), but senior office-bearers of MOEAF continue to own or run recruitment agencies while ostensibly regulating the industry. Complaints involving brokers are investigated by the Police, overseen by the Ministry of Home Affairs. Although the police force is generally poorly trained and resourced for investigations, in 2013 a well-funded and specifically trained Anti-Trafficking in Persons Division was created. However, structural issues remained - coordination between the civilian-led MOLIP and the military-led Ministry of Home Affairs can be complicated, while cooperation between police and prosecutors is poor. Meanwhile, corruption is common throughout the enforcement machinery often determining who gets punished. There is also a historic lack of public trust in the police, particularly amongst ethnic minority groups who also form the bulk of the migrant population.

Corruption is endemic throughout the recruitment process, playing an important role in raising the cost of migration for workers. A rare high-profile prosecution involved the Myanmar labor attaché in Bangkok, who was allegedly seeking money from Myanmar agencies to approve demand letters in Thailand. Nonetheless, recruiters say they need to ‘grease’ the entire machinery - including labour and immigration officials - adding cost they then pass on to the workers. Such payments are however dwarfed by the much larger payments being made by Myanmar recruitment agencies to Thai brokers, recruitment agencies or employers to secure contracts to supply workers. Corruption is also extremely common amongst Thai authorities, including within police and immigration. Although nearly 120 public officials have been disciplined or prosecuted between 2013 and 2020, this is a relatively small number given the scale of the problem. There is no clear information of any recruitment agents having been similarly disciplined or prosecuted. Although there have been legal and institutional reforms in the anti-corruption sphere, this is largely for public consumption. Thailand undertook a general strengthening of the labour inspection regime in recent years, largely as a result of the global attention on its fishing and seafood sector. In 2015, the Navy took over control of a newly created inter-agency machinery responsible for enforcement (including labour issues) over fishing boats, but this transferred to civilian control in 2019. This, along with other aspects of the high-profile inspection regime now tailing down, reiterates views that the improvements to the inspection regime were more for international audiences instead of a sustainable long-term investment for change in the fishing industry. The increased inspections have not so far led to significantly more prosecution, let alone convictions, either in Labour Courts (cases taken up by DLPW) or in Criminal Courts (Police Anti-Human Trafficking Division and office of the Prosecutor).

Recommendations to the Government of Myanmar:

• Ensure that inspection of licensed recruitment agencies and investigation of complaints by workers against such agencies is carried out by an effective and sufficiently resourced labour inspectorate.
• Ensure that complaints relating to recruitment are taken up by the specialised ATIPD, and that there is more effective coordination between the ATIPD and the regular police. Consult with migrant workers’ groups and trade unions on steps to ensure that workers feel safe in filing such complaints.

Recommendations to the Royal Thai Government:

• Set up an inspectorate or task force dedicated to the protection of foreign workers that has a mandate to accept and investigate complaints and to conduct random inspections in the sectors in which foreign workers are employed as well as to inspect private employment institutions that recruit foreign workers. Civil society groups and other expert stakeholders should be consulted on the precise mandate of any such inspectorate, which should at a minimum address contractual issues and recruitment fee payment.
• Ensure that the DOE is appropriately resourced to be able to carry out increased inspections/ audits of licensed recruitment agents and until the above inspectorate is set up, also carry out recruitment- oriented checks of employers, particularly in the fishing and agricultural sectors.