On 22 October 2019, the Chiang Mai Provincial Court read the verdict in the Black Criminal Case no. O999/2562 between the public prosecutor v. Mrs. Nongnut Phonchuen on an offence against Section 131 of the Royal Ordinance Concerning the Management of Foreign Workers 2017 and Section 188 of the Penal Code. The defendant was found guilty as charged as she, as employer of the injured party, a migrant worker, had retained personal documents belonging to her employee. She was sentenced to one month of imprisonment and a fine of 10,000 baht. Given her pleading guilty to the charges and how it has been beneficial to the proceeding, her sentences have been reduced with the prison term reduced to 15 days. And given that her offence is a misdemeanor and she has never before served a prison sentence, to offer her a chance to rectify her conduct, the prison sentence has been reduced to 15 days and suspended for one year plus a fine of 5,000 baht (in the Red Criminal Case no. O1389/2562). As to the personal documents belonging to the migrant worker, the Court has ordered the employer to return them since 17 September 2019 upon her indictment to the court.
In this case, the Migrant Justice Program (MJP) by the Human Rights and Development Foundation (HRDF) in Chiang Mai has received a complaint from a migrant worker who alleges that the employer has retained the worker’s personal documents including the Certificate of Identity issued by the Republic of the Union of Myanmar, a non-Thai ID card and a work permit. The defendant in this case who is the employer has retained the documents since May 2018 claiming she had to pay for the employer-swap fee for 11,500 baht without being able to produce the receipt. She demanded that the employee paid her back the money and she would then return the documents.
Even though the worker had sought to resolve the issue by entering a mediation process after complaining with the Damrongtham Center and the Migrant Joint Service Center, the employer still refused to return the documents insisting on the same reason. HRDF has therefore intervened to offer the worker legal assistance to report the case to the police since the employer has clearly violated the Royal Ordinance Concerning the Management of Foreign Workers 2017. Such act has caused disruption to the worker’s daily life including when they travel anywhere as they are vulnerable to the arrest, when they report themselves to the Immigration Office or when having access to medical treatment.
Ms. Chonticha Tangworamongkon, Director of the Human Rights and Development Foundation (HRDF) says that the imprisonment has been put on suspension since it is her first conviction, albeit the amount of the fine is so minimal compared to the ordeal the employee had to endure for one year and three months during which time the personal documents were taken away. It is a first step to protect the rights of employee and to demand justice by invoking Section 131 of the Royal Ordinance Concerning the Management of Foreign Workers 2017. If employers agree to act in compliance with the law and respect the employees’ rights and if the concerned authorities enforce the law strictly to ensure accountability of the employers, Thailand will certain garner acceptance from international community and trade partners with regard to labor right protection, particularly the rights of migrant workers.
The retention of personal documents belonging to the workers is an offence against the Royal Ordinance Concerning the Management of Foreign Workers 2017. The offender could also be held accountable for forced labor or services pursuant to Section 6/1 of the 2019 Royal Ordinance for the Amendment of the Anti-Trafficking in Persons Act 2008. The amendment has been made to ensure compliance with the Protocol of 2014 to the ILO Forced Labour Convention no. 29 to combat exploitation or violation of labor rights. According to the law, an employer cannot invoke any ground including the debts owed by the employee as a reason to retain their personal documents since document retention could deprive them of their liberty and make them vulnerable to becoming forced labor, debt bondage labor or a trafficking victim.