HRDF (Human Rights and Development Foundation), Advance Release: Shan Migrant Workers Prepare to Challenge Social Security Office Discrimination in the Administrative Court of Thailand

Nang Noom Mae Seng is a 36-year old Shan migrant worker from Burma who, since 2004, has been granted permission to reside and work legally in Thailand under the Thai Government’s migrant registration scheme.

On 4th December 2006, Nang Noom was working at the Shangri-la Hotel construction site in Chiangmai when a sling used to
lift a 300kg mould broke. The mould fell from the 12th floor of the building and shattered into large pieces. One piece of the mould struck Nang Noom as she was working on the 2nd floor and she sustained severe injuries including spinal damage, broken and fractured bones, a torn diaphragm and internal bleeding.

Nang Noom remained in Maharaat Chiangmai hospital receiving treatment and rehabilitation for 11 months through the migrant health insurance scheme. As a result of this accident, Nang Noom is 70% disabled and paralysed from the waist down.

Nang Noom’s accident compensation claim was submitted to Chiangmai Social Security Office (SSO) in March 2007. Officials initially refused to accept her claim on the basis that she entered Thailand illegally and therefore had no rights to compensation.

After pressure however, officials then acknowledged Nang Noom’s right to compensation according to the Workmen’s Compensation Act 1994 (WCA 1994) but once her permanent disability was confirmed, instead ordered her employer to compensate her monthly at TB2, 418 for 15 years. Nang Noom appealed this order to the SSO Workmen’s
Compensation Fund (WCF) Committee claiming it removed responsibility for compensating her from the SSO’s WCF and placed the responsibility instead on her employer.

Nang Noom appealed this order to ensure compensation payments for migrant work-related accident and disease victims like herself in future can come from the WCF directly (as provided for under the WCA 1994) and are therefore formal,
transparent and secure.

As a result of the WCF Committee’s recent dismissal of her appeal, Nang Noom’s case has become a test case in the Administrative Court of Thailand that highlights the Ministry of Labour’s systematic discrimination against migrant workers. In rejecting Nang Noom’s appeal, the WCF Appeals Committee made its decision in accordance with a policy contained in an SSO circular dated 25th October 2001 (ref: 0711/_ 751). The 11th April Administrative Court petition will contend that this circular should be revoked.

SSO Circular 0711/_ 751 states that for a migrant worker to receive work-related accident and disease compensation directly from the WCF: ‘(a) They must show their registration documents and a work permit issued by government officials, together with a passport or alien identification documents; (b) Their employer must have paid dividends into the WCF; and (c) The worker must have submitted an application for personal income tax payment. In the case that a migrant worker does not satisfy these conditions, their employer is assigned responsibility to pay compensation to migrant workers.’
Migrant workers can apply only for temporary residence certificates from the Ministry of Interior (Tor 38/1) and work permits from the Ministry of Labour. However, the SSO insists as a requirement for migrant access to the WCF a passport or alien identification document.

The vast majority of approximately 2 million migrant workers in Thailand, including Nang Noom, are from Burma and/or do not possess a passport or alien identification documents. The other reason given by the SSO for denying access to the WCF for migrant workers is that a migrant worker’s employer must have paid a dividend into the WCF and this dividend would then be used for paying compensation directly to accident victims through the WCF.

The SSO however currently prohibits employers of migrant workers to pay dividends into the WCF, despite the fact that WCA 1994 regulations state clearly that: (a) It is the responsibility of all employers of 1 or more ‘workers’ to pay a dividend into the WCF; and (b) It is the duty of the SSO to ensure all employers of 1 or more workers pay yearly dividends into the WCF.

Nang Noom and two Shan construction workers will therefore petition the Chiangmai Administrative Court on Friday 11th April requesting the Court to revoke the SSO’s circular letter 0711/_ 251, given that they consider it:
1. Displays an SSO policy to deny access to the WCF for the vast majority of migrant workers in Thailand that is unlawful according to the WCA 1994;
2. Discriminatorily denies access by migrant workers to the WCF which thereby has the effect of breaching non-discrimination principles enshrined in the Thai Constitution as well as a number of international conventions to which the Thai Government is a signatory (including ILO Convention C-19 and the UN Convention on the Elimination of All Forms of Racial Discrimination); and
3. Evidences that the Ministry of Labour is ignoring the request by the National Human Rights Commission of Thailand for revocation of this circular on the basis that it is a discriminatory policy impinging on the human rights of migrant workers.

Migrant work-related accidents and diseases are frequent and serious in Thailand, given industrial sectors migrants work in are generally dirty and dangerous. Migrant work-related related accident and disease victims are however often invisible and migrant workers currently lack both knowledge of their most basic rights and confidence to access these rights. Additionally, HRDF has much evidence to suggest that both employers and SSO officials frequently deny migrants’ requests for work-related accident and disease compensation on the basis of their nationality and lack of documentation.

It is crucial therefore that Administrative Court orders the SSO to create transparent and systematic processes for migrant work related accident and disease victims to receive compensation if these individuals are to receive rights accorded to them under the WCA 1994 and by means of constitutional and international laws.

For more information, please contact:
1. HRDF’s Making Migrant Safety at Work Matter (MMSAWM) Project:
0815 957578, 0846 119209, 053 329269
2. Somchai Homlaor (Secretary General, HRDF): 0818 995476, 02 693 4939
3. Sumitchai Hattasaan (Director, Centre for Protection and Revival of Local Community Rights): 0819 507575