Challenges under the Dispute Resolution System in the Labour Relations Act
In this article, we shall examine various challenges and problems that employers and employees should be aware of if they are involved in a labour dispute under the Labour Relations Act (the Act). We shall look at several aspects of the law which are not clear and we shall also examine various aspects of the dispute resolution process which are inconvenient or are problematic (in the writers opinion) in terms of resolving demands and labour disputes.
Letter of Demand Issues:
According to section 13 of the Act when employees submit their letter of demands to their employer, such letter must contain the names and signatures of at least fifteen percent (15%) of the total number of employees who are involved in the demand. This legislative requirement poses a problem for employees as it can be difficult to determine if they meet this threshold especially in large companies as they may not be privy to information on exactly how many employees are employed by their employer. Moreover, this area of the law lacks clarity on several key issues including:
- Must the employees comprising the 15%, be full-time employees or can part time employees also be a party to the letter of demand?
- Can more employees be added to the list after the demands are submitted to the other party?
- What happens if an employee on the list retires, resigns or is terminated from their employment after the list has been submitted? Will such staff be considered as having had their names removed from the list?
- How can a person who signs the list remove themselves from the list if they no longer wish to be a party to the demand(s)?
Initial Negotiating Period & Problems Moving to Labour Conciliator Stage
After the letter of demand has been submitted to the other party, section 16 of the Act requires that the receiving party must give notice to the other party about the name(s) of their representatives and both parties must then commence negotiations within three days of receiving the demand. These negotiations can pose a major obstacle to a party making demands as the other party could potentially keep dragging on negotiations by taking the position that it is willing to continue negotiations and by making repeated negotiation meetings stretched out over an extended period. If this approach is used then the party submitting the demand would have a very hard time to convince the Labour Conciliator that the initial negotiations have concluded without an agreement; and as a result the demanding party could be blocked from taking the dispute to the Labour Conciliator to settle (under section 22 of the Act) or other legal avenues such as striking or using a lock-out. In the writers opinion, it would be sensible to set a maximum timeframe for such negotiations whereby if negotiations fail to result in a settlement outcome then the dispute will automatically proceed to the Labour Conciliator to arrange a settlement negotiation. The writer feels that this approach could help to prevent a party abusing the law to unnecessarily slow down the labour dispute process.
Labour Conciliator Settlement Stage
Another potential roadblock which can hinder a party submitting a demand is the Labour Conciliator settlement stage because these Government officials can be reluctant to state that the settlement negotiations they conduct have failed to result in an agreement and this can prevent the demanding party from taking further action such as appointing a labour dispute arbitrator or taking industrial action such as striking.
An inconvenient aspect of this stage is that such settlement negotiations are normally held at the Department of Labour rather than at the workplace, and as such this can be somewhat inconvenient for both the representatives of employers and the employees as these meetings can last several hours at a time and can be inconvenient to attend. Another key issue which can arise is what happens if a party to the dispute is foreign and is not fluent in Thai? The law provides little guidance on whether such party shall have the right to have a translator in attendance at the settlement meetings. Issues such as this should be clarified especially with the coming of the AEC in the near future.
Labour Dispute Arbitration
If the Labour Department Conciliator cannot resolve the dispute section 26 of the Act permits the parties to agree to appoint one or several Labour Dispute Arbitrators to settle the dispute. The weakness with regard to this option is that this Act provides no guidance on whether the said arbitrators must have certain qualifications and who must be responsible for paying for their services, for instance should the cost be split between the parties or should the losing party pay more? Moreover, the LRA is ambiguous in relation to what rules such arbitration shall be governed by. According to Thai law, the parties would need to enter into a separate arbitration agreement before using the services of Labour Dispute Arbitrators but in the writers opinion, more detail could be inserted into the Act on these matters so that parties to a dispute can better understand what needs to be done before using arbitration as a means to resolve the dispute.
Timing Ambiguity Issues:
In relation to settling labour disputes the LRA specifies several time deadlines for taking certain action, for example in section 21, if the initial negotiations between the parties do not take place or if there is no agreement achieved then the party which presented the demand letter must notify a Labour Conciliation Officer within 24 hours of the 3 day time limit in section 16 elapsing or from the time that agreement cannot be reached. However, the Act lacks clear guidance on when this 24 hours will count from exactly, for instance if the negotiation fails to resolve the dispute, would the 24 hours count from the moment that the last negotiation meeting was held or the last correspondence received or from some other point. In the writers opinion the Act should provide greater detail on when timeframes start from so that parties to a dispute can better understand how to comply with the Act.
Should you require any legal advice on occupational health and safety laws in Thailand then please contact us at Dharmniti Law Office Co., Ltd. 2/2 Bhakdi Building 2nd Floor, Witthayu Road, Lumphini, Pathumwan, Bangkok, Tel : (66) 2680 9710, Email: email@example.com or firstname.lastname@example.org