Thailand Country Study Towards a Best Practice Guide on Sustainable Action Against Child Labour
By Natalie Bennett
Printed by Amarin, Bangkok, ISBN 974-8369-59-5
Appendix IV: Extracts of Essential Child Labour Documents
Contents:
A. Current Legal Provisions on Child Labour
B. Proposed New Legal Provisions on Child Labour
C. Anti-Prostitution Legislation and Proposed Anti-Trafficking Legislation
D. The Child Labour Problem: Prevention and Solution Plan 1997-2001
E: Cabinet's Decisions Concerning Policy and Measures To Solve Problems on the Exploitation of Child Labour (June 14, 1988)
F. Policy and Plan on the Prevention and Eradication of the Involvement of Children in the Commercial Sex Industry, 1996.
G. Minutes of the Meeting of the Child Labour Protection Committee, July 8, 1997.
Appendix IV (A)
Current Legal Provisions on Child Labour
Clause 20: An employer shall not employ a child under thirteen years of age as an employee
The first paragraph shall not apply to the employment of a child not less than twelve years of age as employee before the date of the effectiveness of this notification
Clause 21: An employer shall not employ a child from thirteen but less than fifteen years of age as an employee, except:
(1) The child is employed in work as prescribed by the Ministry of Interior and such work must not be harmful to the health and physical development of the child.
(2) The child is employed for works other than those which the Ministry of Interior prescribes under (1). After submitting the application to the labour inspector according to the form prescribed by the Director-General and the permission has been obtained from the labour inspector.
For the permission under (2), the labour inspector shall examine that the work is not harmful to the health and physical development, mentality of the child, not against moral principles, and is not prohibited by this Notification, the labour inspector thus grants the permission for the employer to employ the child as an employee. In such case, the labour inspector may also stipulate conditions of employment.
Clause 22: In employment of a child, the child must present official documentation indicating date of birth. In the case that the child is unable to indicate the date of birth, the parents or guardian shall certify the correct date of birth before presenting the official documents without delay.
The employer shall keep the evidence under paragraph one ready for inspection by the labour inspector during working time.
The employer with an employed child shall present the report of child employment in a year to the labour inspector according to the form prescribed by the Director-General within the month of January the following year.
Clause 22 bis: If it appears to the labour inspector that:
(1) The employer violates or fails to comply with the written warning issued by the labour inspector with regard to the conditions of employment stipulated in the permission under paragraph two of Clause 21 or
(2) The nature and conditions of work has caused harm to health and physical development, mentality of the child or is against moral principles.
the labour inspector has the power to revoke the permission granted for the employment of a child.
Clause 23: An employer shall specify the daily normal working hours for an employee from the age of thirteen years but not less than eighteen years not more than eight hours per day.
An employer shall not require an employee from the age of thirteen but less than fifteen years to work in the day or time or the type of work as follows:
(1) work in holidays
(2) Work in overtime
(3) Work during 10 p.m. and 6 a.m. except the child works as a performer in film, theatre or other similar acts, but during such period, an appropriate rest period shall be provided.
Clause 24: An employer shall not require an employee from the age of thirteen years but less than eighteen years to do work as may be prescribed by the Ministry of Interior.
Clause 25: In the case that an employer, an employed child, the parents or the guardian of an employed child has been paid or accepted money or any other benefit in advance before the employment, at the time of employment or before each period of payment for the employment of the child, it shall not be deemed to be the payment or acceptance of wages for the employed child and the employer shall not set-off such money or other benefits against wages which are payable at the specified time.
Appendix IV (B)
Proposed New Legal Provisions on Child Labour
(This is the authors' translation of the bill approved by the Senate, incorporating its amendments to that passed by the House of Representatives. Further amendments are possible as the House is currently re-considering the Senate version.)
Clause 20: An employer shall not employ a child under fifteen years of age as an employee
Clause 42: The employer shall not employ an employee aged under eighteen years to perform any of the follow jobs:
(1) Moulding, blowing, plastering, sheeting metals
(2) Casting of metals
(3) Work that involves excessive heat, cold, vibration, sound and light which can be hazardous as identified in the Notification of the Ministry of Labour and Social Welfare
(4) Work involving hazardous chemical substances as identified in the Notification of the Ministry of Labour and Social Welfare
(5) Work involving dangerous micro-organisms, including viruses, bacteria, fungi and others as identified in the Notification of the Ministry of Labour and Social Welfare
(6) Work involving toxic substances, explosives, inflammables, except work in gas stations, as identified in the Notification of the Ministry of Labour and Social Welfare
(7) Driving or operating forklifts or cranes
(8) Work involving operating electrical or motorised chainsaws
(9) Work performed underground, under-water, in tunnels or mountain tunnels
(10) Work with radio-active substances as identified in the Notification of the Ministry of Labour and Social Welfare.
(11) Cleaning using engines or machines
(12) Work on scaffolding more than ten metres above the ground, as in the Notification of the Ministry of Labour and Social Welfare
(13) Other work as identified in the Notification of the Ministry of Labour and Social Welfare.
Clause 43: Where a child under the age of 18 is employed, the employer must:
(1) Notify the Inspector within 15 days of the child starting work.
(2) Record the child's working conditions, and, if there is a change in these, with the record to be kept in the employer's office.
(3) If the employment of the child is terminated must inform the Inspector within seven days.
(All of these records are to be maintained in a form to be specified by the Director General.)
Clause 44: An child under the age of 18 shall not work more than eight hours per day and after four hours shall have a period of rest. Within the two blocks of four hours, there should also be shorter breaks.
Clause 48 Employers are prohibited from employing children under 18 in the following work groups
(1) Abattoirs
(2) Gambling houses
(3) Dance halls
(4) Places where food, alcoholic beverages, tea, and other drinkers are sold and served by service girls, with accommodation, or with massage services for customers.
(5) Other places as identified in the Notification of the Ministry of Labour and Social Welfare.
Appendix IV (C)
THE PROSTITUTION PREVENTION AND SUPPRESSION ACT
B.E. 2539
His Majesty King Bhumibol Aduladej
Given on 14 October B.E. 2539
the fifty first year of the present reign
His Majesty King Bhumibol Aduladej issues the royal order that the following royal decree shall be announced;
Section 1 This Act shall be called "Measures in Prevention and Suppression of Trafficking in Women and Children Act B.E. 2539"
Section 2 This Act shall come into force sixty days from the date of its publication in the Royal Gazette.
Section 3 The Prostitution Suppression Act B.E. 2503 shall be repealed.
Section 4 In this Act:
"Prostitution" means the acceptance of sexual intercourse, the acceptance of any other act, or the commission of any act for sexual gratification of another person in a promiscuous manner, in order to gain financial or other benefit, no matter whether the person who accepts such act and the person who commits such act are of the same or opposite sex;
"Place for Prostitution" means the place or premises arranged for prostitution or allowed to be used for prostitution, and it shall include the place or premises used for making contact or procuring another person for prostitution.
"Primary Shelter" means a place established, according to this Act, by the Government, other foundations, associations or institutes for the temporary acceptance of the person who receives protection and vocational development in order to consider the appropriate measure for protection and vocational development for each person.
"Protection and Vocational Development Place" means a place, established according to this Act, by the Government, other foundations, associations or institutes for welfare protection and vocational development of the person who receives protection and vocational development.
"Protection and Vocational Development" means mental rehabilitation, medial treatment, vocational skill training and development, and other development including improvement of the quality of life.
"Committee" means the Committee for the Protection and Vocational Development or the Provincial Committee for the Protection and Vocational Development as the case may be.
"Official" means the person to whom the Minister has designated the authority to perform the functions according to this Act.
"Director General" means the Director General of the Department of Public Welfare
"Minister" means the Minister in charge of controlling the execution of this Act.
Section 5 Whoever, for the purpose of prostitution, approaches, solicits, introduces himself or herself to, follows, or importunes another person on a street, in a public place, or any other place, and such act overtly or shamelessly committed or causes nuisance to the public, shall be punished with a fine not exceeding one thousand baht.
Section 6 Whoever gathers with another person in the place for prostitution in order to benefit from the prostitution activity of that person or another person shall be punished with imprisonment not exceeding one month, or a fine not exceeding one thousand baht, or both.
Section 7 Whoever advertises or accepts to advertise, solicits or introduces with a document or printed material, or distributes information, by any other means to the public in an obvious manner to solicit or contact for the purpose of prostitution of that person or any other person, shall be punished with imprisonment of six months to two years, or a fine ten thousand to forty thousand baht, or both.
Section 8 Whoever, for sexual gratification of that person or of the third person, commits sexual intercourse or any other act against a person who is over fifteen years but not yet over eighteen years of age, with or without his or her consent, in the place for prostitution, shall be punished with imprisonment of one to three years and a fine of twenty thousand to sixty thousand baht.
If the commission of the offence as specified in the first paragraph is committed against a child not over fifteen years of age, the offender shall be punished with imprisonment of two to six years and a fine of forty thousand to one hundred and twenty thousand baht.
If the commission of the offence as specified in the first paragraph is committed against the marriage partner of the offender, and is not committed for sexual gratification of the third person, the offender is not guilty.
Section 9 Whoever procures, seduces or traffics the other person to commit the act of prostitution, even with consent of the other person, no matter whether the commission of various acts which constitute the offence are committed inside or outside the territory of the Kingdom, shall be punished with imprisonment of one to ten years and a fine of twenty thousand to two hundred thousand baht.
If the commission of the offence as specified in the first paragraph is against a person who is over fifteen years but not yet over eighteen years of age, the offender shall be punished with imprisonment of five to fifteen years and a fine of one hundred thousand to three hundred thousand baht.
If the commission of the offence as specified in the first paragraph is against a child not over fifteen years of age, the offender shall be punished with imprisonment of ten to twenty years and a fine of two hundred thousand to four hundred thousand baht.
If the commission of the offence as specified in the first, second or third paragraph is perpetuated by using deceitful means, threat, physical assault, immoral influence, or mental coercion by any other means, the offender shall be punished with punishment one-third heavier than the punishment accordingly specified in the first, second or third paragraph.
Whoever, with intention to arrange for an act of prostitution, knowingly accepts the person who was procured, deceived or trafficked to commit prostitution activity as specified in the first second, third or fourth paragraph, or aids or abets in the commission of the offence, shall be punished with the punishment accordingly specified in the first, second, third or fourth paragraph as the case may be.
Section 10 Whoever is the father, mother or guardian of a person not yet over eighteen years of age, with the knowledge that there is the commission of the offence as specified in the second, third or fourth paragraph of Section 9 against the person within his or her guardianship, colludes with another offender in the commission of that offence, shall be punished with imprisonment of four to twenty years, and a fine of eighty thousand to four hundred thousand baht.
Section 11 Whoever is the owner, supervisor, or manager of a prostitution business or a place for prostitution, or controller of a prostitute in the place of prostitution, shall be punished with imprisonment of three to fifteen years and a fine of sixty thousand to three hundred thousand baht.
If the prostitution business or place for prostitution as specified in the first paragraph has a person not yet over eighteen years of age performing the act of prostitution in such place, the offender shall be punished with imprisonment of five to fifteen years, and a fine of one hundred thousand to three hundred thousand baht.
If a prostitution business or place for prostitution as specified in the first paragraph has a child not yet over fifteen years of age performing the act of prostitution in such a place, the offender shall be punished with imprisonment of ten to twenty years, and a fine of two hundred thousand to four hundred thousand baht.
Section 12 Whoever detains or confines the other person, commits any other act that deprives the liberty of the other person, assault the other person, or threatens with any other means to use physical force to commit a violent act against the other person, in order to force the other person to perform the prostitution activity, shall be punished with imprisonment of ten to twenty years, and a fine of two hundred to four hundred thousand baht.
If the commission of the offence as specified in the first paragraph causes to the other person
(1) serious bodily injury, the offender shall be punished with life imprisonment
(2) death, the offender shall be punished with the death penalty or life imprisonment
Whoever aids or abets in the commission of the offence as specified in the first or second paragraph shall be punished with the punishment as specified in the first or second paragraph as the case may be.
If the perpetrator, aider or abettor to the commission of the offence as specified in the first paragraph is an administrative official, police official, government official or worker in the primary shelter or in the protection and vocational development place according to this act, such perpetrator, aider or abettor shall be punished with imprisonment of fifteen to twenty years and a fine of three hundred thousand to four hundred thousand baht.
Section 13 If the father, mother or guardian of the person who commits the offence as specified under Section 6, Section 7 or Section 8, colludes for the commission of an act of prostitution by the person in his or her guardianship, the Committee for the Protection and Vocational Development can petition the prosecutor to file an application to the court in order to revoke the guardianship of the father, mother or guardian, and to appoint another guardian to replace the father, mother or former guardian.
In the case that the court is to appoint a new guardian according to the first paragraph and the court adjudicates that no suitable person may be appointed as the guardian of the offender, the court may appoint the director of the primary shelter or protection and development place, in which jurisdiction the offender resides, to be the new guardian of the offender.
The Guardian Appointment provisions in the Civil and Commercial Code shall govern and apply mutatis mutandis to guardian appointments under this Section.
Sections 15-31
Cover the structure and functions of the Committee for the Protection and Vocational Development and the Provincial Committees for the Protection and Vocational Development and the primary shelter.
Section 32 In the case that the offender or defendant who has committed the offence as specified in Section 5 and 6, must be detained during the investigation or inquiry by the inquiry official, or during the trial of the court, the offender or defendant can be detained according to the criminal procedure law of the Magistrate Court. The offender or defendants, or the Public Welfare Department, may be asked to look after such offender or defendant according to the regulation laid down by the C.P.V.
Section 33 In case that the person who commits the offence according to Section 5, or Section 6, is not yet over eighteen years of age, and is not charged or is not under trial in another case which has the penalty of imprisonment or is not convicted to be imprisoned, the inquiry official, after the settlement of the case, shall notify the Public Welfare Department in order to send that person into the care of the primary shelter which has jurisdiction.
According to the first paragraph, if the person is over eighteen years of age and that person wishes to receive the protection and vocational development in the protection and vocational development place, the inquiry official shall notify the Public Welfare Department in order to send that person into the care of the primary shelter which has jurisdiction.
Section 34 In case that the offender, who commits the offence as specified in Section 5, Section 6 or Section 7, is not yet over eighteen years of age, and the court, after having examined the biography, behaviour, intelligence, education, physical health, mental health, profession and environment of the offender, determines the offender should not be punished but should receive protection and vocational development instead, the Public Welfare Department shall receive the offender for sending to the primary shelter which has jurisdiction within fifteen days of the date the court renders the judgment.
In case that such offender in the first paragraph is over eighteen years of age and if that offender wants to receive the protection and vocational development in the protection and vocational development place and it is appropriate in the opinion of the court, the Public Welfare Department shall receive the offender for sending to the primary shelter which has jurisdiction within fifteen days of the date the court renders judgment.
In case that the court has convicted the offender in the first paragraph and in the opinion of the court the offender should also receive the protection and vocational development, the Public Welfare Department shall receive the offender for sending to the primary shelter which has jurisdiction within fifteen days of the date the court renders the judgment. The offender shall be under the control of the primary shelter and the protection and vocational development place.
The duration of time the offender was detained shall not be counted as part of the length of time the offender is to be under the control of the primary shelter and the protection and vocational development place.
The rules and procedures in receiving the offender from the court for sending to the primary shelter which has jurisdiction shall be stipulated in the regulations issued by the Director General and approved by the C.P.V.
Section 35 The primary shelter shall consider the personality, educational background, cause of committing the offence, and performance in the aptitude test of the person sent, in accordance with Section 32 and Section 33, to the primary shelter. After such consideration, the primary shelter shall send such person to the appropriate protection and vocational development place within the time frame specified in the regulation laid by the C.P.V., but this period shall not exceed six months from the date of receiving such a person.
Section 36 The rules and procedures for sending the person into the case of the primary shelter in accordance with Section 33 and Section 34, and in sending the person to receive protection and vocational development in the protection and vocational development place in accordance with Section 35, shall conform with the regulations laid down by the C.P.V.
Section 37 The person who is in the protection and vocational development programme shall stay and receive the protection and vocational development in accordance with the regulations laid down by the C.P.V. for a period not exceeding two years from the date the protection and vocational development place receives such person.
Section 38 If any person escapes from the primary shelter or protection and vocational development place during the time that person is under the care of the primary shelter or under the protection of the protection and vocational development place, the official of the primary shelter or the protection and vocational development place has the authority and duty to pursue such person in order to bring such person back to the primary shelter or to the protection and vocational development place, as the case may be. In such pursuit, the primary shelter or the protection and vocational development place may request assistance from the police.
When any person has completed the full term of protection and vocational development, the official of the primary shelter or the protection and vocational development place shall send such person back to the residence of that person, unless in the opinion of the C.P.V. it should be handled otherwise.
Section 39 The official shall have authority and duties as follows
(1) To enter into the entertainment place according to the law on entertainment places, both day and night, for inspection and monitoring the commission of the offences under this Act.
(2) To bring the victim, who is lured or forced into prostitution and consents to receive the protection and vocational development, to the inquiry official to investigate and find the offender for further legal action. The provision of Section 33 shall be applied mutatis mutandis to the sending of the prostitute into the care of the primary shelter.
Section 40 Every member of the Committee, Sub-Committee and official according to this Act, shall be the official in the meaning of the Penal Code.
Section 41 Whoever resists or refuses to cooperate with the official in performing the function in accordance with Section 39, shall be punished with imprisonment not exceeding one month, or a fine not exceeding one thousand baht, or both.
Section 42 During the time when the Office of the C.P.V. has not been established, the Public Welfare Department shall have the authorities and duties in accordance with Section 25.
Section 43 The rehabilitation place established in accordance with the Prostitution Suppression Act B.E. 2503 shall be the protection and vocational development places according to this Act.
Any person who is still being rehabilitated under the rehabilitation programme in accordance with the Prostitution Suppression Act B.E. 2503 on the date this Act comes into force shall continue to receive the protection and vocational development until the end of the term set by the Director General.
Section 44 All the announcements, regulations, rules or orders issued in accordance with the Prostitution Suppression Act B.E. 2503 shall continue to be in force as long as they are not in conflict with the Act and until there are announcements, regulations, rules or orders issued under this Act.
Section 45 The Ministry of Labour and Social Welfare Ministry shall have duty to control the execution of this Act. The Minister shall have authority to appoint the official, and to issue ministerial regulations and announcements for the performance of the works specified in this Act.
When the ministerial regulations and announcements are published in the Royal Gazette, they shall come into force.
Appendix IV (D)
The Child Labour Problem: Prevention and Solution Plan (1997-2001)
Part 1: Analysis of the Child Labour Problem
The employment of child labour is not the problem, but there are serious problems in the illegal and unfair employment of child labour.
Child labour problems in Thailand can be divided into two groups:
(i) Unfair and illegal child labour being found as follows:
* Children under the age of 13 labouring. They have many problems in terms of readiness and adjustment, which may lead to the problem of employers using violence against them.
* Children being forced to work beyond permitted periods, including being denied holidays, working overtime and working all day and all night.
* Low wages, not being paid and being cheated of their wages
* Lack of appropriate welfare provisions, including crowded and unsanitary living space, low quality food, no recreation and low skill development.
* Dangerous working conditions, such as odours of oil, thinner and paint, fermented odours, chemicals, dust, thread residues, metallic particles, flour dust, heat, extreme cold and humidity. Some children are ordered to carry weights greater than the legal limits, or to operate crushing, cutting or pumping machines which could easily cause them harm when they are exhausted.
(ii) Violation of children's basic rights found are as follows:
* Being separated from their parents at an early age, resulting in adjustment and mental health problems and the children being deprived of appropriate development opportunities.
* Being forbidden with contact their families and the disappearance of some children.
* Being cruelly-treated, physically and mentally harmed or sexually harassed by employers, brokers or staff of job placement agencies.
* Lack of social mechanisms and institutions to protect the rights of child labour.
Part 2: The Implementation of Prevention and Solution Activities for Child Labour Problems
* The government has a clear policy to prevent and solve child labour problems.
* There were 27 measures which have been used as the guiding principles for concerned government agencies, then in 1992 the Ministry of the Interior refined the 27 measures to 16, making methods of implementation clearer.
* The main limitation of past policy and measures is the lack of serious implementation as well as the dissolution of the Child Labour Protection Committee when the government was reshuffled.
* There was no clear policy or major implementation activities to prevent child labour problems.
* There is no effective cooperation between the government and private organisations through workers' organisations and employers.
* Although higher technology has been introduced into Thai production, due to high levels of world competition small enterprises which are not formalised will employ children, thus the employment of child labour is needed. It if necessary to find the mechanism for implementation to prevent and solve child labour problems by having the national plan for operation.
Part 3: Directions for the Development for Child Labour Problem Prevention and Solution (The objectives and goal of this plan)
* Summarise the State Policy which is stated in the constitution of the Kingdom of Thailand, Articles 19-62.
* Government policy presented to the parliament concerning women, children and the disadvantaged.
* The Ministry of Labour and Social Welfare's policy.
*The objectives of the Child Labour Problem Prevention and Solution Plan:
1. on the prevention side
2. On the protection side
3. On the development of mechanisms for monitoring and policy implementation.
Goals:
1. Goals concerning prevention of child labour problems:
* That there be no illegal or unfairly-treated child labour
* Child labour standards must be in line with international standards, that is not less than 15 years of age.
2. Goals Concerning the Protection of Child Labour
* All child labour are to be protected without sexual or racial discrimination
* All child labour should enjoy basic rights according to the labour laws and the United Nation Convention on the Rights of the Child.
3. Goals concerning development of guiding principles and policy implementation on child labour
* The Policy and Development Plan for Prevention and Solution of Child Labour Problems must be actively implemented.
* Concerned agencies in both the government and non-government sector must have real working capacity to prevent and eliminate child labour problems.
Target groups:
1. Groups of illegal child labour, including children who are employed under the age of 13, cruelly-treated, exploited or seriously abused in terms of human rights.
2. Legal child labour groups. These are children who need to work to earn income, and who are properly treated by employers, with working conditions acceptable to Thai society.
Major Strategies for Child Labour Problem Prevention and Solution
1. Prevention of Child Labour Problems
* Extending educational opportunities
* Amending labour laws to forbid child labour under 15 years of age
2. Protection of Child Labour
* Creation of incentives for employers to invest in taking care of and developing child labour through tax reductions.
* Increasing both the number and the quality of labour inspectors.
* Mobilising related agencies in both the public and private sectors to promote common action in attempts to seriously deal with child labour problems, including financial support for such actions.
* Creating a network for monitoring of child labour and an inspection system from the children's homes to their workplaces.
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