Myanmar - Thailand: Legal Framework

Both Myanmar and Thailand - with their history of wobbly and uneven democracies and military-led governments - have fragmented legal/regulatory frameworks governing migration in which the rights of migrant workers are peripheral. After decades of isolation, Myanmar made some moves to align itself with the international human rights system in the past decade, including ratification of the ICESCR. These moves however were overshadowed by global condemnation following Myanmar’s atrocity crimes against the Rohingya. Nonetheless, before the military coup took place on 1 February 2021, the first-ever civilian-led government of Myanmar had been working with the technical support of the ILO and IOM towards strengthening its legal/regulatory framework for migration, which remains inadequate and inconsistent and not easily available publicly. Progress has been slow, e.g. the 1999 Law Related to Overseas Employment (LROE) has been under review for many years, while consultation with workers’ groups is limited and ad-hoc. Civil society groups have largely been ignored, but recruiters are able to have some say through the Myanmar Overseas Employment Agencies Federation (MOEAF). Decision-making is centralised at high political levels and there is little Parliamentary or high-level oversight in a country in transition. On the ground, the formal migration process - built around recruitment agents - is limited by dated provisions, bureaucratic/ security-minded officials and endemic corruption. This ensures that recruitment processes are lengthy, non-transparent, confusing and expensive for workers, particularly with the involvement of brokers.

Thailand has ratified most of the core international human rights treaties and ILO conventions, with the notable exception of the migrant workers convention and ILO conventions relating to freedom of association and collective bargaining. While migrants workers largely have the same formal rights as nationals (one important exception is with respect to freedom of association), there is significant discrimination in practice. This invariably has negative outcomes for workers, including on access to justice. Recruitment was largely unregulated in Thailand until 2016 but Ordinances in 2017-18 provide the central framework regulating all migrant workers, albeit with significant gaps (relating to transportation, placement of workers and information dissemination). Recruitment of fishing workers and seafarers is additionally covered in specific legislation. Much of the relevant legal framework on recruitment was passed as decree/ ordinance by a military government, with little or no consultation, including from workers’ groups. There is no recruitment agency body, but many agencies themselves are believed to be owned by influential persons. Employers’ bodies, including the National Fisheries Association of Thailand (NFAT) are also influential. Regularisation of undocumented workers has been a common feature in Thailand over the past two decades and takes place via Cabinet announced procedures/ schemes. All workers - regardless of their legal status - are covered by labour protection legislation. Many amendments in the labour regime covering fishing were made in the context of global outrage against forced labour in the sector and the EU ‘yellow card’/ US ‘Trafficking in Persons Report’ rating downgrade.

Recommendations to the Royal Thai Government:

• Ratify the ILO Private Employment Agencies Convention, 1997 (No. 181).
• Following consultation with workers groups, conduct a review of all Thai laws/regulations relating to foreign workers to ensure that they are consistent with international human rights and labour standards and the gaps identified above are covered.
• Ensure that foreign workers, irrespective of their legal status, are not discriminated against in practice particularly with respect to freedom of association and access to grievance mechanisms.

Recommendations to the Government of Myanmar:

• Ratify the ILO Private Employment Agencies Convention, 1997 (No. 181) and in keeping with its requirements, ensure that Myanmar laws/regulations are amended to remove all recruitment fees paid by workers in line with the ‘employer pays’ principle and in such a way that it is consistent with the ILO’s definition of recruitment fees and related costs.
• Prioritise the reform/ amendment of the Law Related to Overseas Employment and supplemental rules to strengthen protection mechanisms for all workers, irrespective of their legal status. Any amendments should be introduced after ensuring that there is adequate consultation with civil society and trade unions, workers’ groups.