EXPERIENCES OF MYANMAR MIGRANT WORKERS IN THAILAND WITH THE MOU IMPORT PROCESS

Transcription

1 EXPERIENCES OF MYANMAR MIGRANT WORKERS IN THAILAND WITH THE MOU IMPORT PROCESS Prepared by Andy Hall 6 May 2012 Executive Summary... 3 Background... 4 Myanmar Migrants and the MoU Process: Introduction and Analysis... 5 The MoU Process... 5 Analysis of MoU Process... 6 Recommendations... 9 Appendix: Case Studies Phatthana Abuse Case Nyinyi Touya Wang Khaimong Tenyi Lozan

2 "I feel that working under the MoU import process is like being in jail. I don t have freedom to go anywhere and have to stay in the camp all the time, there s a security guard to check when I go in and out. I would not suggest any person to come to work in Thailand under this formal MoU import worker scheme. I am happy to come to work in Thailand under the MoU process. 2

3 Executive Summary In June 2003, a Memorandum of Understanding between the Government of the Kingdom of Thailand and the Government of the Union of Myanmar on Cooperation in the Employment of Workers (MoU) was signed to promote formal procedures for employment and protection of Myanmar workers in Thailand and to undermine irregular migration and the negative consequences associated. Procedures to integrate irregular Myanmar workers already in Thailand were also agreed upon. In 2009, six years after the MoU, few signs of its implementation existed as almost all migrants from Myanmar in Thailand had entered into the country irregularly and were deemed illegal, despite over 1 million documented through registration amnesties. From 2009 to 2012 however, a nationality verification (NV) programme was undertaken by the Myanmar Government and currently around 600, 000 workers from Myanmar who had previously registered now have temporary passports and are legal. There has also been a significant increase in workers entering into Thailand legally, almost all via the Kawthaung/Ranong border crossing in Southern Thailand. Around 15, 000 workers have already entered legally into Thailand from Myanmar with 5, 000 alone entering in February Currently there is increased focus by policy makers in Thailand and Myanmar on legal import processes for workers as a solution to more than two decades of irregular migration and also a means to ensure both greater rights protection and also prevent smuggling and trafficking in persons. But there has been little exploration and evaluation of the processes involved and, despite the potential benefits to migrants and employer of legal import processes over irregular migration, there continues to be a lack of regulation of the process with exploitation occurring regularly and systematically. This report explores and analyses background data on the MoU process from a desk review, a focus group and informal interviews with stakeholders involved alongside documenting experiences of 6 migrant workers from Myanmar who entered into Thailand legally and one case study of the Phatthana factory abuse case. An analysis particularly of the challenges faced by the MoU import process is presented here to draw attention of both the Governments of Myanmar and Thailand to the need for improvements to be made. This report recommends that, whilst the MoU process is commendable as a measure to overcome challenges associated with irregular migration, both the Myanmar and Thailand governments should urgently re-evaluate the process to address the weaknesses in its existing implementation. This report specifically recommends that: 1. Individuals/agents involved in the MoU process should be regulated through a transparent system of accountability, registration and supervision 2. Costs of the MoU process should be significantly reduced and Thai employers should bear financial responsibility rather than shifting the burden to workers, as required by the model employment contract 3. Effective recruitment of workers should be undertaken using public awareness raising in Myanmar and amongst existing Myanmar migrants and their communities in Thailand 4. Information campaigns for the general public and pre departure training for departing migrants should be implemented to ensure workers understand employment contract, costs and the general situation in Thailand 5. Workers temporary passports, Thai work permits, Myanmar national ID cards and Myanmar labour cards should not be confiscated by anyone as these are the personal property of the worker 6. Migrants entering Thailand legally should not have their residence status tied only to one employer and they should be allowed to change employers to prevent forced labour conditions arising 7. No restrictions should be placed on the freedom of movement of migrants legally coming into Thailand 8. The MoU process should be made simpler and quicker to avoid long waiting time for migrants at borders and alternatives to using border areas only should be considered to reduce cost and distance travelled 9. All workers should be given their employment country in a language they understand and its contents should be properly explained to them before signing 10. Myanmar should provide effective consular services to migrants in Thailand and advertise this assistance 11. Arrangements should be made between both countries to avoid multiple health checks Once regular migration becomes more cost effective, comfortable and safer than irregular migration for all those involved, only then will the aims of the MoU between Myanmar and Thailand be genuinely met. 3

4 Background On 21 st June 2003, almost two decades after the first significant flows of migrant workers started entering irregularly into Thailand from neighbouring Myanmar, a Memorandum of Understanding between the Government of the Kingdom of Thailand and the Government of the Union of Myanmar on Cooperation in the Employment of Workers (MoU) was signed. 1 The MoU was to ensure proper procedures for the future employment of workers between the two countries, effective repatriation of workers, due protection of workers and prevention of and effective action against illegal border crossings, trafficking of illegal workers and illegal employment of workers. In addition, the agreement provided for the establishment of procedures to integrate illegal workers who were already in Thailand irregularly. Similar agreements were signed between Thailand and Cambodia/Laos PDR also around the same time. This MoU was one of the first formal means of recognition of the scale of migration of low skilled labourers into Thailand from Myanmar - a country which continued to experience entrenched political, economic and social turmoil which necessitated the departure of its citizens overseas to make money to send back to their relatives at home for survival. In addition, evidenced in the agreement was acceptance of a situation whereby workers from Myanmar had entered Thailand irregularly for some time now. Smuggling and trafficking of workers from Myanmar to Thailand to fill significant gaps in Thailand s labour force had become the means by which almost all low skilled workers entered into the country. By 2009, more than a million low skilled migrants from Myanmar had registered in multiple amnesties provided by the Thai Government since Those workers were granted a status whereby they were temporarily granted permission to legally reside and work in Thailand for one year, pending deportation, as a result of original unauthorized entry into the country breach of immigration laws. Only around 500 low skilled workers had entered from Myanmar to Thailand legally under MoU processes since From 2003 to 2009, six years after the signing of the MoU agreement, there were few signs that it was ever going to be implemented as almost all migrants from Myanmar in Thailand were deemed irregular. However, eventually by the middle 2009, things started to change. From 2009 to 2012, a programme was implemented to verify nationality of Myanmar migrants who had registered to legally work as labourers or domestic workers in Thailand but whose original irregular entry meant they were labeled illegal. The process was called nationality verification (NV) and, by April 2012, has resulted in almost 600, 000 Myanmar workers being issued temporary passports and becoming fully legal. In addition, a significant increase in workers entering into Thailand from Myanmar legally via MoU processes is visible. Ministry of Labour statistics suggest 14, 571 workers entered formally into Thailand from Myanmar by March 2012, with almost 5, 000 during February 2012 alone. Almost all of these workers entered Thailand at the Kawthaung/Ranong border crossing in Southern Thailand. Despite progress however, as of March 2012, over 900, 000 workers from Myanmar in Thailand still remained registered but illegal, pending completion of the NV process with a deadline unrealistically set at 14 th June The number of undocumented workers from Myanmar in Thailand continues to remain unclear. 2 Currently there is increased focus by policy makers in Thailand and Myanmar on legal import processes for workers from Myanmar to Thailand as both a solution to more than two decades of irregular migration, a means to ensure greater rights protection for migrants and also an important way to prevent smuggling and trafficking in persons. Thailand insists again in 2012, as it has many times in the recent past, that there is no return to amnesties for undocumented migrants and it is either NV, deport or import as the only three options for Myanmar workers in Thailand. Purported progress towards democracy, respect for rule of law and greater protection of human rights in both countries, particularly in Myanmar, enhance importance of tackling irregular migration and trafficking in persons also. As outlined above, there have also been significantly increased flows of workers legally into Thailand from Myanmar in A second point of worker import at the Myawaddy/Mae Sot border has commenced processing workers since the border opened in December 2011 after its previous closure due to unrest involving the Democratic Karen Buddhist Army (DKBA) since July Full text available online at 2 For an introduction to irregular migration policies in Thailand, see Hall, A. (2011) Migration and Thailand: Policy, Perspectives and Challenges in Huguet, J. and Chamratrithirong, A. (Eds.) Migration for Development in Thailand: Overview and Tools for Policymakers (IOM, Bangkok) and Hall, A. (2011) Thailand s Low Skilled Migration Policy: Progress and Challenges (available at 4

5 Myanmar Migrants and the MoU Process: Introduction and Analysis The MoU Process An increasing number of low skilled workers have been entering into Thailand from Myanmar during the past two to three months by means of a formal worker import process provided for in the MoU. But there has been little exploration and evaluation of the processes involved. Despite potential benefits to migrants and employers of regular migration channels like those established by the MoU import process over irregular migration, there continues to be a lack of regulation in of the process with exploitation occurring regularly and systematically. The MoU does not provide significant detail on the specific processes by which employers request workers, workers are recruitments and the means by which workers depart from Myanmar, arrive and start work in Thailand and return home to Myanmar. The MoU does however outline it goals as ensuring proper procedures for employment of workers, effective repatriation of workers who have completed terms and conditions of employment and due protection of workers to ensure they receive the rights they are entitled too. In addition, the authorised agencies are explained to be both Thailand and Myanmar s Ministries of Labour who should, respectively, inform their counterparts of job opportunities and provide their counterparts with lists of selected applicants for the jobs. These agencies should also coordinate to ensure requirements such as visas, work permits, health insurance and the signing of employment contracts are fulfilled. According to the MoU, workers imported from Myanmar into Thailand may work for an initial period of 2 years, extendable for another 2 years if appropriate. However, after a maximum of 4 years, these workers are required to return to Myanmar for at least 3 years before applying to return again. The same conditions apply to workers passing NV, and in 2013 the first of the workers completing this 4 year allowed working period will seemingly have to return home. Workers entering through the MoU should also be protected in accordance with the provisions of the domestic laws in their respective countries with access to rights and benefits on the principles of non discrimination of sex, race and religion. 3 Thailand s Ministry of Labour (MoL Thai) has published a detailed outline of the MoU process 4 in which the MoL describes itself as providing administrative coordination through diplomatic channels only and with no responsibility for recruiting alien workers to work with Thai employers/establishments directly. The process for recruiting and authorising workers from overseas to legally enter Thailand to work primarily involves MoL Thai, MoL Myanmar, an employer, a worker and a Myanmar agent authorised by Myanmar s Ministry of Labour (and sometimes also a separate Thai agent also). The process also involves Myanmar Home Affairs who issue the Myanmar temporary passports, Thai Immigration who issue visas to workers arriving with passports into the country and Thailand s Ministry of Public health who examine the health of workers both prior to and after coming into Thailand. The import process revolves around border crossing points and passport/mou offices at Kawthaung/Ranong in Southern Thailand and, as of December 2011, Myawaddy/Mae Sot in Western Thailand. The process is reasonably complex and bureaucratic. 5 An employment contract is a prerequisite to gaining approval to employ and import workers legally from Myanmar. The employer must define in advance when applying for permission to hire foreign workers in Thailand, when recruiting workers formally and signing the contract in Myanmar in front of officials and again when actually applying for a work permit for the worker in Thailand that the conditions of employment are in line with Thai labour law. The conditions of employment include working hours, wages and overtime rate, number of days of weekly, traditional and annual holiday, 3 The MoU talks about a savings fund to which workers should contribute 15% of their income to which they are entitled to request returned to them upon lawfully leaving the country and to which government agencies may draw from in case a worker does not return. This fund does not seem to be operational however. 4 No such documents could be obtained from the Myanmar government. 5 The procedure can be summarised as follows: (1) An employer requests permission to employ workers from Myanmar for their vacant positions from the local Thai employment office (LEO) and, as long as no Thai workers apply for the available work following advertisement, the Thai Department of Employment (DoE) issues a quota; (2) An employer requests to the LEO to import foreign workers via the MoU process, as per their quota. The employer must: (a) Assign power of attorney to an agent in Myanmar to ensure recruitment/delivery of workers. According to information gathered, this agent must be a Myanmar national or company authorised by Myanmar MoL; and (b) Complete a demand letter explaining both that authority has been assigned and the conditions of employment for the prospective employees by filling in a model employment contract. LEO then sends documentation to the DoE and, together with MoL Thai issued letter to inform MoL Myanmar of the request, sends all documents to MoL Myanmar via Myanmar s Embassy in Thailand. MoL Myanmar informs the designated agency to organise recruitment of workers and the agent then recruits workers and brings them together with the employer to agree terms and conditions of employment. Once agreement is reached between employers and the workers, the agent sends a list of names to MoL Myanmar to authorise and then sends these document onto the employer; (3) An employer submits the name list with request for work permits to the Thai Embassy in Myanmar and Immigration in Thailand via the LEO and DoE whilst the Myanmar agency organises for the workers to enter Thailand on a border pass to have a health check at a designated Ministry of Public Health hospital. Once workers have passed the health check, the agent assists the worker to apply for a passport and Myanmar labour card and then organises signing of the employment contract between the workers and the employer in the presence of Myanmar officials. The agent (and/or the employer) then brings the worker into Thailand. On entry into Thailand, and after passing through the border immigration checkpoint, the worker is taken to Thai Immigration where their passport is stamped with a 2 year visa. Within 3 days of receiving this visa, the employer must take the worker to have another health examination and apply for a work permit in their province of employment before they start working in Thailand. 5

6 the duration of the contract and termination requirements. In addition, the contract of employment must state that an employer will be responsible for organising accommodation and food for workers once they begin work (although not necessarily paying for these) as well as covering all the costs associated with the workers travel to and from Thailand at the defined beginning and end of the contract, and in the case of natural disasters. 6 The formal costs for both an employer and worker associated with the MoU process, including when applying for a passports, visas, work permits and all related exit/entry costs and health checks are estimated at 3-4, 000 Baht (US$ ). However, some costs involved, particularly in Myanmar, remain unclear. 7 The process requires utilising a Myanmar agent and often a Thai agent also. Agents considerably increase the costs for workers and their employers. A review of relevant law, discussions with Myanmar and Thai officials and experience of agents and brokers provided some information on the current lack of a legal framework governing the MoU process. Myanmar agents are allowed to become involved in the MoU process as long as they register with MoL Myanmar. It remains unclear what are the conditions for this registration. In addition, there remains no specific legal framework to regulate these companies and the fees they charge in Myanmar. Thai officials stated that regulation of the Myanmar agents is the responsibility of the Myanmar government but any Thai agents involved in Thailand are not regulated by any legal framework. Most stakeholders reported that, when signing the employment contract in front of Myanmar officials, the employer must agree with the official that they deduct no more than 10, 000 Baht (US$333) from the imported workers for all costs involved in the import process. It remains unclear the legal basis to this figure and in practice it is not applied. Thailand has one law on protection of and recruitment for migrant job seekers, the 1985 Recruitment and Job Seekers Protection Act. However, this law only provides protection for: (1) employment services within the country; (2) employment services for Thai workers going overseas; and (3) personal travel of Thai workers to work overseas. Despite a shortage of labour for over 2 decades and the reliance on millions of workers from overseas, and despite the increased focus of legal import of workers from Myanmar, this law does not cover services and job recruitment for these overseas foreign workers coming into Thailand. Given this lack of regulation, in 2010 and during the Draft Recruitment and Job Seekers Protection Act was proposed but legislative reform is no longer underway. 8 No legal framework for regulating recruitment of and protecting migrant worker job seekers coming from overseas is currently applicable in Thailand. Analysis of MoU Process This research is based on an analysis of information of the import of workers into Thailand from Myanmar via the Kawthaung/Ranong border in Southern Thailand from interviews and a focus group 9. The second formal import crossing at Myawaddy/Mae Sot was closed due to unrest between July 2010 and December 2011 so the process of worker import at that point has only just commenced and it was not possible to identify workers as case studies. Information on the import process at Myawaddy/Mae Sot however was gathered from interviews with participant observers/myanmar brokers who witnessed the process in Myawaddy in Myanmar and spoke to workers, employers and agents involved. The case study of the Phatthana abuse factory was also analysed for this report Costs Most of the workers who entered into Thailand at the Ranong border checkpoint reported paying between US$650 to US$1, 100 for the entire process. 10 In every case the full cost of the process was borne by the worker and it was a The cost breakdown is as follows: (a) Thai employer cost to assign power of attorney once/multiple times to agent: 10/30 Baht; (b) Myanmar worker costs for requesting permission to work overseas from Myanmar MoL: unavailable; (c) Thai employer cost to apply for work permit prior to entry for authorised worker: 100 Baht; (d) Myanmar worker costs for border pass to have 1 st health check in Thailand (Myanmar cost): 20 Baht; (e) Myanmar worker costs for border pass to have 1 st health check in Thailand (Thai cost): 20 Baht; (f) Myanmar worker costs for 1 st health check in Thailand: 600 Baht; (g) Myanmar worker costs for applying for passport with Myanmar Home Affairs: unavailable; (h) Myanmar worker costs for applying for labour card with Myanmar MoL: unavailable; (i) Myanmar worker costs for departing from Myanmar: unavailable; (j) Myanmar worker costs for applying for 2 year visa with Thai Immigration: 500 Baht; (k) Myanmar worker costs for applying for 1 year work permit with Thai MoL (n.b. work permits are also available for 3 or 6 months and cost depends on location and sector of work): 900 to 1, 900 Baht; (l) Myanmar worker costs for second health check and applying for health insurance for 1 year: 1, 900 Baht. 8 The proposed draft law contained a chapter four (sections 47 to 50) that were concerned with Recruitment of Aliens Working in the Kingdom of Thailand, although the section did not apply to recruitment of craftsmen or expert employees. These sections laid down procedures to be followed by agencies or companies who received permission to involve with recruitment of alien workers and bringing these workers into the country, particularly relating to fees and notification requirements that fall under the existing Alien Employment Act 2551 and the fact that responsibility for removing an alien worker from the Kingdom where necessary would lie with an employer, a person granted permission to deal in recruitment of migrant workers or related government officials. 9 The focus group was conducted on 26 th February 2010 with five women from Myanmar, aged who come from Yangon, Myawaddy and Rakkhine State. 10 One worker reported paying less than US$400 but was already living at the border area of Kawthaung/Ranong when he entered into Thailand. 6

7 significant cost for them to bear alone. Both the agent requested advance payment from the worker to arrange import into Thailand and apply for related permission and the employer deducted from a worker s salary the cost borne by them in getting authorization for bringing the worker to work in Thailand and paying for related documents on arrival. Workers often resorted to using personal or family life savings and/or borrowing money from friends to pay the initial costs to the broker and/or for paying off the debt to their employer if they wanted to get their documents back or leave. 11 Background data collection from observers of the import process in Myawaddy, who also spoke to some of the first migrants to take part in the process there, suggest if a worker arrived in Myawaddy, the advance payment to the agent was around 2, 000 Baht (US$66, or around 50, 000 Kyat). This covered accommodation and two meals a day whilst waiting for the import process to be complete, however long the process took. These workers then reported that their employer would deduct between 13-15, 000 Baht (US$433 US$500) from their salaries once they started work in Thailand to cover all of the costs of the process. These workers in Myawaddy said that if they were recruited into the MoU import outside of Myawaddy, the costs were much higher although a clear estimate was not available. The payment of all costs related to the import process by the worker is in breach of the model contract of employment conditions that must be adhered to by both a Thai employer and Myanmar worker for the import process to be approved and which allocates all responsibility for travel costs to the employer. 12 Awareness and Information All of the workers displayed a lack of awareness and information on the specifics or stages of the import process and the costs involved. All workers said they misunderstood the costs involved, with most saying they understood that their advance payment to the Myanmar agent was the only payment they would have to make. When the workers arrived in Kawthaung and negotiated work with an employer, they were surprised the employer would then deduct another 10, 000 to 15, 000 Baht (US$333 to US$500) from their salaries but it was too late to do anything. All workers did not know the formal costs involved in each stage of the MoU import process, including costs of the work permit, visa and passport. Workers reported that they did not have correct information about the kind of work they would have to do and also sometimes their working hours and salary payments also. Most reported limited choice of prospective employer and, apart from in Myawaddy where workers reported choosing their work sector from a notice board, brokers arranged for prospective employers to come to meet workers. Most reported doing work other than that to which they had agreed and at times getting less money than they thought they would get (n.b. all work was advertised at least at the minimum salary rate for the province or 200 Baht (US$6.5). No workers reported receiving any pre-departure training from officials or agents, although some workers said that on departure immigration officials advised them verbally on how to and not to act in Thailand. Some agents insisted workers received training when recruited, prior to coming to Thailand and on arrival. Confiscation of Personal Documents All of the workers had one or more of their personal documents confiscated by their employer until and even after they had paid off debt related to costs of their import into Thailand. Most of the workers reported that all of their personal identification documents including temporary passport, Myanmar ID card, Myanmar labour card, Thai work permit (and/or receipt for work permit) and even their Thai health insurance card were confiscated by an employer or broker. Some of the workers reported these documents were returned to them once their debt was paid off. Officials and agents interviewed explained the need for the employer to recover their costs from the import process as the basis for the confiscation, despite the illegality as these documents were owned by the workers. Some officials, agents and workers reported also that the employer kept these documents only for safe-keeping and that if workers were sick and needed to see a doctor, the employer would allow the worker to access their health related documents. Change of Employer All of the workers reported that they were unable to change employer during the time they were indebted to the employer as they did not possess documents. However, most of the workers reported they understood, and officials both from Myanmar and Thailand confirmed, that change of employer for workers coming into Thailand under the MoU process is 11 For travel, particularly from Yangon to Kawthaung in Southern Myanmar, all workers reported using an airplane, which was particularly expensive, but the ticket was purchased by the agent as part of the fee they paid up front so they did not know the actual cost of the flight. Likewise for all other costs associated with the process, including approval costs with official Myanmar and Thai agencies, passport costs, work permit costs and visa/border pass costs, the workers were unaware of the actual costs involved as all these costs were paid by either the Myanmar agent in advance or paid for by the Thai employer and deducted from the worker s salary. Information was provided of workers having to pay pre-departure training fees of up to US$100 to their agent also for essential training. 12 Clause 9 of this contract states that The employer shall pay for the cost of Employee s traveling to Thailand as well as pay the arrangement for transportation to his assigned housing. The Employer shall also pay for the cost of the return traveling of the Employee to his country after he finish his working contract, except that the Employee is at fault or terminates the contract. 7

8 forbidden. If workers wanted to change employer, they had to return back to Myanmar and start the whole MoU process again as their visa was tied to a specific employer and no change of employer was allowed. Thai officials did suggest that, as is the case with non MoU imported migrant workers generally in Thailand, in case an employer become bankrupt, dies, a company relocates, there is violence from an employer towards a worker or a breach of labour laws then a worker could contact officials to change employment and assistance would be offered informally. Freedom of Movement Some workers reported that their freedom of movement was restricted until debt was paid off. Workers reported that if they left a workplace, a substitute family member or friend would have to act as insurance until they returned. Other workers reported agents would monitor and/or restrict their movement given the agency often had an agreement with an employer to provide substitute workers free of charge should any of the newly imported workers run away or leave the company within a certain number of months of starting. Workers often reported compulsory overtime work, even when they were sick. Workers reported that their accommodation was prepared for them on arrival in Thailand but was not paid for, so workers had to cover the costs of energy and rental, together with those they shared with. Many workers reported getting 1, 000 Baht in cash on arrival and being supplied with basic equipment such as for sleeping and cooking. Application Process No workers reported any direct awareness of the MoU process from Myanmar government agencies and reported no publicity. All information workers received on the process was from brokers, employers or friends and relatives. Brokers Workers reported having little information on the agent responsible for their import apart from a phone number. Most agents used their houses to meet and accommodate workers and most never went to an official recruitment office. Length of Process Workers entering from Kawthaung reported the time taken to complete the MoU process from first contact with a broker was between 25 days and 50 days. Generally around one month was spent waiting in Kawthaung. Workers in Myawaddy reported the process took between 2 weeks and 1 month. During this time, workers accommodation costs were covered by their advance payment to agents but additional costs included food (breakfast was often not provided) and other personal necessities. Workers complained about the length of time and costs incurred during the wait, although some workers found work. Accommodation provided was said to be basic with limited toilet facilities and cramped sleeping areas. Employment Contract Some workers report no employment contract or the contract only being provided in English or Thai language. Consular Assistance and Follow Up None of the workers reported awareness of consular assistance available to them from the Myanmar Embassy after coming to work in Thailand. There was some evidence of workers being provided with contact numbers and receiving follow up assistance and/or medical assistance from agents. Deception Workers reported a mix of confusion, misunderstanding and deception during the MoU process. Some of the workers felt they were deceived by a broker/agent into thinking that the costs of the process were less than they were in reality, particularly relating to agents telling workers that their advance payment was their only expenses in the process but then there employer deducted additional costs once they started working in Thailand. Medical Checkup Workers reported having multiple health checks in Yangon, Ranong (for Kawthaung entrants), Mae Sot (for Myawaddy entrants) and also at the final province of destination. Eligibility Workers reported that only those with an official Myanmar identity card could take part in the MoU process and selection was often made by employers and agents according to quotas based on age, height, sex, health and even personality traits. 8

9 Recommendations Once regular migration becomes more cost effective, comfortable and safer than irregular migration for all those involved, only then will the aims of the MoU between Myanmar and Thailand be genuinely met. Analysis of the MoU process and experiences of workers, agents and officials explored during this analysis show the potential benefits to migrants and employer of legal import processes over irregular migration. However, there continues to be a lack of regulation in this area with exploitation occurring regularly and systematically. This report therefore recommends that both the Myanmar and Thailand governments should urgently re-evaluate the MoU import process to address the weaknesses in its existing implementation so as to make the process more effective and just. This research also particularly recommends that: 1. Individuals/agents involved in the MoU process should be regulated through a transparent system of accountability, registration and supervision 2. Costs of the MoU process should be significantly reduced and Thai employers should bear financial responsibility rather than shifting the burden to workers, as required by the model employment contract 3. Effective recruitment of workers should be undertaken using public awareness raising in Myanmar and amongst existing Myanmar migrants and their communities in Thailand 4. Information campaigns for the general public and pre departure training for departing migrants should be implemented to ensure workers understand employment contract, costs and the general situation in Thailand 5. Workers temporary passports, Thai work permits, Myanmar national ID cards and Myanmar labour cards should not be confiscated by anyone as these are the personal property of the worker 6. Migrants entering Thailand legally should not have their residence status tied only to one employer and they should be allowed to change employers to prevent forced labour conditions arising 7. No restrictions should be placed on the freedom of movement of migrants legally coming into Thailand 8. The MoU process should be made simpler and quicker to avoid long waiting time for migrants at borders and alternatives to using border areas only should be considered to reduce cost and distance travelled 9. All workers should be given their employment country in a language they understand and its contents should be properly explained to them before signing 10. Myanmar should provide effective consular services to migrants in Thailand and advertise this assistance 11. Arrangements should be made between both countries to avoid multiple health checks 9

10 Appendix: Case Studies Phatthana Abuse Case Phattanna Seafood Factory is located at 70/8 Moo 3, Tambon Khao Rub Change, Ampur Muang, Songkhla Province in Southern Thailand. The factory is a seafood processing factory involved in shrimp and other seafood. Seafood is de-veined, cleaned, boiled, packaged and frozen in the factory and the factory has armed guards with guns and handcuffs. Hatyai is the business capital and Muang the official capital of Songkhla Province. Hatyai was hit by terrorist bombs in early April The area is part of the Southern conflict zone with an insurgency under way, although Hatyai and the area of Phattana factory are not under curfew or under the special military law zone. Three parts of Songkhla are under military law however. Migrants in Songkhla work in construction, fishing, fish processing and general industrial factories. The majority of fisherman are Cambodian with other industries employing both Cambodians and Myanmar workers. There are a number of large seafood processing firms in Songkhla and Hatyai, including Siam International, SS Frozen Sea Foods, Pacific and Songkhla Canning. Most of these factories have 70% Cambodian and 30% Thai/Myanmar workers. Many of these factories have reasonable conditions for workers. Trafficking is a problem in this area, with all nationalities (Thai, Cambodian and Myanmar) being trafficked onto boats. Estimates suggest around 400 Myanmar workers at Phatthana factory and around 1, 500 Cambodians. Almost all workers at this factory came through the MoU process, although there were some normally registered Myanmar workers reported to be at the factory. Myanmar brokers involved in bringing and controlling Myanmar workers at Phatthana are called Ko Ptan Tin, Aye Maung Hla and Cha Tate. These brokers, according to workers, were employed by Phattana to bring people to the factory from Myanmar. Myanmar workers at Phatthana reported paying advance payments to brokers in Yangon to come to Thailand to a company called Shwe Pin Lal [Golden Sea]. Costs of between 350, 000 and 550, 000 Kyat (US$437 US$687) were paid in advance and workers understood that this was all their costs up front. Once workers arrived in Kawthaung after flying to Southern Myanmar from Yangon however, they were then told that their salaries would be deducted an extra 10, 000 (US$333) and US$15, 000 Baht (US$500) for employer costs once they arrived at their workplace. Once workers were at Kawthaung, it was too late for them to do anything as they were already in debt and didn t want to lose the opportunity and money they paid out. In Kawthaung, workers were given a contract of employment, the official Thai MoL English/Thai contract of employment, as well as a Myanmar version (which is different from the Thai/English version) signed by their employer and them, which stated a minimum salary of TB205 per day (US$7), holidays and working hours as per law (6 days work per week, holidays 6 days per year and 13 cultural, OT 1.5 times hourly rate). All workers had copies of these contracts. When recruited, Myanmar workers contract provided also that their health would be covered and accommodation would be free of charge. If workers didn t have any days off in the month, they would get an extra 600 Baht (US$20) bonus also. All workers at Phatthana had all their documents (work permit, health card and passport) confiscated at every stage of the MoU process and they were never returned. The workers got a copy of their passport only to keep. Some Myanmar workers reported that their Myanmar ID cards were also confiscated. If workers had not paid off their debt in coming to Thailand, they were not allowed to leave Phattana. Cambodian workers ran away more often than Myanmar workers, but for Myanmar workers, they reported that their debt and that of their family was too high to run away. If workers had paid of their debt to the employer/company/broker, they could then go home if they wanted to (at least 10 months, although some workers want their documents so they will pay more than the minimum per month in the belief they will get their documents back). Myanmar workers had to pay the broker/agent to go 10

11 home around 5, 000 Baht (US$166) for transport and protection fees. They could not change employer however, nor could they get their documents/passports back. Workers and the Phatthana employer understand that MoU laws do not allow workers to change employer and if they want to, they must return to their origin country and apply again to come to Thailand. Despite abusive treatment, all the Myanmar workers didn t want to go home as they wanted to make more money to pay off existing debt at home incurred during their initial recruitment. There was discussion that the reason workers cannot get their passports back is that the broker will then re-use them for another person. For changing employer, workers at Phatthana needed to get a certificate from the company as only then would another factory accept them. Others said the law didn t allow change of employer. Some workers suggested there are bogus brokers who tell workers that for 4, 000 Baht (US$133) they can change employer, but when the worker pays, there is never any progress. Workers have now all been warned of this scam. If workers cannot change employer legally, their only option is to run away. If they run away, they can only get employed as an undocumented migrant worker, often in construction jobs outside of the cities in Thailand. When running away, workers reported being arrested and put in prison for one month (as a warning to others), and then sent back to the factory with debt from the bail costs incurred by the broker or factory; workers had car accidents and died; workers got jobs as undocumented migrants in construction jobs; workers were killed if they are caught; workers managed to get home after their escape. Sometimes, workers reported that there have been deportations on the basis that a worker has failed their health check if they became disruptive. There were reports that health checks were often not completed properly in Myanmar or on entry meaning that some workers, having paid for recruitment process, test positive for TB or HIV/AIDS in Songkhla and are then deported with no refund of recruitment fees. Phattana is renowned amongst migrants in Songkhla province and around as being the worst factory in the region. Workers at Phattana say work is not regular for them and they don t know when they will and when they won t work. They report between 12 to 20 days of work per month, instead of usual 26 or more should be working. If they don t work, they don t get paid. The daily minimum wage in Songkhla Province was previously TB176 (US$6) per day, but this increased to TB246 (US$8) from April 1 st. All workers reported that they were paid TB177 per day, despite the Myanmar contract of employment stating they would be paid TB205. Workers at Phattana reported taking home around TB3, 000 to TB5, 000 (US$100 to US$166) per month as there was irregular work. Pay slips of Myanmar workers for early 2012 showed for the twice monthly payment at Phattana for one work was 2663, 3569, 2864, 3623, 2851, 2335, 1523, 1849 and 2232 Baht respectively. Pay slips show 177 Baht per day, OT at rate of 1.5 per hour, bonus payment and social security deduction (social security deduction seems much higher than 5% as required from employee by law, looks more like 10%). Also tax deductions were quite high and there was both an employee tax code (suggesting they are registered to pay tax) and an employer social security code. Shifts at Phatthana were 630am to 430pm or 7am to 4pm or 8am to 5pm. Workers at Phattana do not have a regular day off as they often have no work for many days each month. Workers report a history of violent disputes between the Cambodian/Myanmar workers at the Phatthana factory and the Thai workers. Disputes arise as the migrants feel discriminated and looked down on. The disputes often arise when workers, rushing to make their shifts on time, pick up the wrong knifes, aprons or other factory appliances/uniforms. The Thai workers will then get very angry at the workers and fights occur. Two workers interviewed were transferred to neighbouring SS factory after a fight. Workers report that in the past, a number of migrants have been killed in these kinds of violent disputes. Workers report that they are all given the same weight (price per kg) when they work on piece meal rates, but that Thai workers are given larger shrimp or seafood which means that they can get more money than the migrant workers. The workers (Cambodian and Myanmar) report that this is discrimination. 11

12 Workers have to take a vehicle to work from their accommodation at a cost of 20 Baht (US$0.6 per day). Workers say that often there seems to be some kind of system in place whereby they cannot move outside of their assigned accommodation to live somewhere else as the accommodation owner will work with the transport provider to ensure they stay there so the transport owner can get money for their service. Phatthana factory did not have enough toilets and workers frequently could not make it to the toilet in time so they soiled their underwear. Often the supervisors wouldn t let workers use the toilet or have toilet breaks, but if they were allowed to use the toilet, the time was strictly limited to 15 minutes or they would face wage deductions. The toilets were a long way away so there is not enough time for the workers to go to the toilet, and many toilets are broken and there are also drug users using some toilets. Accommodation was provided for all workers at Phatthana in small rooms, where they shared between 5 to 7 people at a cost of 300 Baht per person per month (US$10). Couples had no privacy and some couples moved out to their own accommodation if they has enough money for 1, 000 baht per month per couple (US$33). Toilets at the accommodation are a problem as many people share one room and many people share one toilet. Workers cannot access healthcare, and there are reports that when workers are sick, they go to the nurse in the factory but are just giving yaa si khaw (white tablets, likely guess paracetemol). One worker was so sick recently that they nearly died and only then did the employer allow them to go to hospital. However, once at hospital, the workers had to come together themselves to cover the hospital costs by donations amongst themselves. The hospital increases the price when workers do not meet deadlines for payments and calls the police. Workers do not understand about health care or social security and, despite deductions, officials at the Ministry of Labour report that Phattana factory workers are not covered by the social security scheme as the employer has not made payments into the scheme. Prior to a strike, media publicity and the eventual change of conditions at the factory in mid April 2012, Myanmar workers had come together to sign a petition requesting change of employer given they have been deceived and their employer ws not complying with their contract of employer. The workers contacted Daw Mya Mya Htet in Naypyidaw, who they said was a senior official in Myanmar immigration, as they needed urgent help. They got her number from when they were in Kawthaung and about to be imported into Thailand. This lady gave them the contact number of the Myanmar labour attaché at the Embassy in Bangkok (Kyaw Kyaw Linn) so the workers rang up to protest to get assistance. Kyaw Kyaw told them to send their letter by mail to the Embassy as he would not receive by phone or and he refused to give the workers his address. However, the workers sent their protest letter scanning by to a Myanmar monk who then sent the to an Embassy official s address but there has was no response. More than 100 new Myanmar workers were due to arrive at the Phattana factory from Kawthaung in early April The Myanmar workers said there was nowhere for these workers to stay, so they would protest to prevent them arriving. The existing workers also said they rang to Daw Mya Mya Thet to stop the workers coming, but she rang to a broker (named Cha Tate/Aye Maung Hla), but the workers were being given 5, 000 Baht as gift to come. Both Cambodian and Myanmar workers talked about donation schemes that have been set up by workers to assist Phattana workers to survive and eat healthily. Other workers working outside Phattana make donations. For media reports on this case and the political and diplomatic fallout, see also: * * * * * * * 12

13 Nyinyi Nyinyi is a 32 year old man of Burman ethnicity from Mon State in Myanmar who is married with two children. He completed lower secondary education. His family earns a living working in agriculture, generally growing vegetables. Previously, his working and earning was dependent on others providing him temporary employment such as doing carpentry work but this work was not enough for his own family s survival. Nyinyi lived with his mother in law in Myanmar but he did not get along with her so he wanted to move out. One day, Nyinyi s wife s sister told him that she has been persuaded to work in Thailand and, along with her friends, they would all enter Thailand legally to work through a formal government process (the MoU process). She told Nyinyi that if he wanted to go also he would have to pay 300, 000 kyat (US$375) travel costs to get to Kawthaung in Southern Myanmar. Nyinyi consulted with his wife about working in Thailand and she agreed with him that it was a good option, given their financial situation. In order to cover the travel costs, they decided to dell a golden necklace they owned. A week after this initial discussion, a broker from Mawlamyine came to Nyinyi s village to meet with people who wished to work in Thailand. The broker explained that there were jobs available in both cooling rooms and on construction sites. Construction work in particular would be paid at least 230 baht per day ($7.7), and likely more also, he said. The broker also said overtime opportunities were widely available to earn even more money. Five people in Nyinyi s village and another 10 in a nearby village decided to go to work in Thailand at that time. Three days later, Nyinyi and the other 15 people travelled with the broker to his house in Mawlamyine and waited two days to travel onto Kawthaung. The journey took the group from Mawlamyine in the early morning by bus to Tavoy, where they arrived in the late afternoon. Then at midnight, a car came to pick all the people up to take them to the seaport for travelling to Kawthaung. During the journey to Kawthaung, the group passed through police checkpoints but the workers showed their ID cards and the rest of the process was negotiated by the broker. However when Nyinyi and the other workers arrived in Kawthaung, police officers apprehended them and confiscated their ID cards, not allowing them to go on any further. Again the broker helped negotiate with the officers. The broker was frustrated with the checking situation by officers but then organised motorbike taxis to take Nyinyi and the others in the group to a house of his colleagues in Kawthaung city and then he separated from the group. We all were asked to pay the fare charged by the motorbike service, which was too high at about 7,000 kyat (US$9), and eventually we negotiated the price down to 4,000 Kyat (US$5), Nyinyi complained. Nyinyi stayed in the house in Kawthaung for two days, after which three prospective employers from Thailand came one after another. These people said they represented a canned fish factory, a construction company and a glove factory and explained that the company would pay first for the costs of the workers passport as well as accommodation and travel costs whilst the group was waiting to go to Thailand. However, each worker had to sign a two year contract and then after this two years they were to they could make a decision to continue or discontinue work with this employer. Given this advance payment, each worker would have to pay back to their employer 13,000 baht (US$433), even though the labour contract stated 10, 000 baht (US$333). All workers were told that they should not complain about any of the conditions when eventually signing the contract in the passport office or else the concerned employers would not import them to work in Thailand. Nyinyi agreed to work in construction as he was already skilled in this area. The following day, the representative of the employer came to the house and gave Nyinyi 500 baht (US$17) as personal expenses. Free food was provided to the workers twice a day. Nyinyi said however, The food was not delicious and it was low quality, sometimes only rice was served also. Nyinyi spent 28 days waiting in Kawthaung to come to Thailand and during this time he worked to make some extra money, doing painting and 13