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Situation and Gap analysis of the Work in Fishing Convention, 2007 (No. 188), and Thai
national laws, regulations and other measures concerning conditions of work on board
fishing vessels1

Table of Contents

Executive summary …………………………………………………………………………………………………..…… iii

Chapter 1. Objective and Methodology 1
Chapter 2. Background 1
2.1 Situation ............................................................................................................... 2
2.2 Relevant statistical data ........................................................................................ 2
2.3 Legal framework for protection of fishers .............................................................. 3
Chapter 3. Gap Analysis: the Work in Fishing Convention, 2007 (No. 188) and Thai
national laws, regulations and other measures 7
3.1 Definitions and scope ............................................................................................ 7
3.1.1 Definitions (Article 1) .............................................................................................. 7
3.1.2 Scope (Article 2)..................................................................................................... 15
3.2 General principles ............................................................................................... 17
3.2.1 Competent authority and coordination (Article 7) ............................................... 17
3.2.2 Responsibilities of fishing vessel owners, skippers and fishers (Article 8)............ 18
3.3 Minimum requirements for work on board fishing vessels ................................... 21
3.3.1 Minimum age(Article 9)......................................................................................... 21
3.3.2 Medical examination (Article 10-12) ..................................................................... 22
3.4 Conditions of service ........................................................................................... 25
3.4.1 Manning and hours of rest (Article 13-14) ............................................................ 25
3.4.2 Crew list (Article 15) .............................................................................................. 26
3.4.3 Fisher's work agreement (Article 16-20) ............................................................... 28
3.4.4 Repatriation (Article 21) ........................................................................................ 30
3.4.5 Recruitment and placement (Article 22) ............................................................... 33
3.4.6 Payment of fishers (Article 23-24)......................................................................... 35
3.5 Accommodation and food ................................................................................... 37
3.5.1 Accomodation and food (Article 25-28) ................................................................ 37

3.6 Medical care, health protection and social security .............................................. 38

3.6.1 Medical care (Article 29-30) .................................................................................. 38
3.6.2 Occupational safety and health and accident prevention (Article 31-33) ............ 39
3.6.3 Social security (Article 34-37) and Protection in case of work – related sickness
injury or death (Article 38-39).......................................................................................... 41
3.6.4 Compliance and enforcement (Article 40-44) ....................................................... 43

1 This document was prepared by an inter-disciplinary team of the ILO, including staff of the EU-funded Ship to Shore Rights Project,

following extensive consultations conducted by the ILO in partnership with the Ministry of Labour.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188)
 3.6.4.1 Ministry of Labour ..................................................................................... 44
3.6.4.2 Department of Fisheries under the Ministry of Agriculture and Operatives
46
3.6.4.3 Marine Department under the Ministry of Transport .............................. 50
3.6.4.4 Royal Thai Marine Police ........................................................................... 50
3.6.4.5 Royal Thai Navy ......................................................................................... 50

Annexes.
Annex 1 – Usage of flexibility clauses …………………………………………………………...…….… 52
Annex 2- List of focus group participants …………………………………………………………….… 58
Annex 3 - Number of migrant workers allowed to work temporarily in the sea fishing
sector in Thailand, 2014 – 2016 …………………………………………………………………………..… 61

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) ii
Executive summary

Background and scope of the study

As part of a drive to end gross labour abuses in the Thai fishing and seafood industry, the
Royal Government of Thailand and social partners have been working intensively since 2014
to address challenges and improve situations. In December 2014, Thailand adopted the
Ministerial Regulation on Protection of Workers in the sea fishing sector, under the Labour
Protection Act B.E. 2541 (1998). This development was supported by technical cooperation
between the Department of Labour Protection and Welfare, Ministry of Labour, and ILO
GMS TRIANGLE I Project. With ILO technical support, the law-making process involved
consultations with key stakeholders in the fishing sector at national and local levels, whilst
key standards adopted in the law were drawn from the Work in Fishing Convention, 2007
(No. 188). In April 2015, the National Council for Peace and Order established the Command
Centre for Combating Illegal Fishing or CCCIF as the special mission centre to resolve
problems related to illegal, unreported, and unregulated fishing (IUU).

In May 2015, the European Union issued a ‘yellow card’ as a formal notice for Thailand’s
failure to take sufficient measures in the fight against illegal fishing. Trafficking and forced
labour in the fishing sector, whilst not directly linked to IUU fishing, are addressed as part of
Thailand’s plan to combat IUU and improve working conditions in Thailand fishing and
seafood industry. Thailand has since been showing greater efforts to address challenges and
improve situations. Strengthening law and policy are key components of the Government’s
roadmap to combat illegal fishing and related labour abuses, and the Royal Ordinance on
Fisheries, which came into force in November 2015, is an example of that effort.

The Ministry of Labour has been tasked by the Government to develop measures to improve
working conditions and to progressively prevent unacceptable forms of work, including
forced labour and child labour. Law and policy measures to be developed are to be in line
with key international labour standards, including the Work in Fishing Convention, 2007 (No.
188), and the Protocol of 2014 to the Forced Labour Convention, 1930.

Thailand is now considering ratification of the Work in Fishing Convention, 2007 (No. 188)—
hereafter C. 188.—which was adopted to ensure that fishers have decent conditions of work
on board fishing vessels that meet minimum requirements with regard to work on board,
conditions of service, accommodation and food, occupational safety and health (OSH)
protection, medical care and social security. It revises and replaces a series of previous ILO
instruments: Hours of Work (Fishing) Recommendation, 1920 (No. 7); Minimum Age
(Fishermen) Convention, 1959 (No. 112); Medical Examination (Fishermen) Convention,
1959 (No. 113); Fishermen’s Articles of Agreement of Convention, 1959 (No. 114);
Fishermen’s Competency Certificates Convention, 1966 (No. 125); Accommodation of crews
(Fishermen) Convention, 1966 (No. 126); and the Vocational Training (Fishermen)
Recommendation, 1966 (no. 126).

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) iii
To help determine Thailand’s readiness to ratify this Convention, this analysis identifies gaps
and discrepancies in Thai law and practice, and provides recommendations to the
government. This gap analysis was conducted based on a set of guidelines and template
matrix developed by the ILO for an assessment of national laws and regulations vis-à-vis C.
188.2

The report examines Thailand’s existing legal framework for work in fishing followed by a
Section-by-Section analysis of the gaps between Thai law and the definitions, scope, general
principles, and provisions of C. 188. This analysis drafted in consultation with relevant
stakeholders via four focus group meetings conducted on 16 – 17 November 2016. This
report was also prepared with support from staff in the ILO Bangkok-based Ship to Shore
Rights project (‘Combatting Unacceptable Forms of Work in the Thai Fishing and Seafood
Industry’) funded by the European Union, the Senior International Labour Standard and
Labour Law Specialist in the ILO Asia regional office, the ILO’s Transport and Maritime
Sectors Unit (SECTOR) in Geneva.

The findings of the analysis are presented under the usual understanding that the
International Labour Office has no authority under the Constitution of the International
Labour Organization to provide interpretations of the instruments adopted by the
International Labour Conference or to assess the conformity of national law and practice
with these instruments, and without prejudice to comments that may be made by the
competent ILO supervisory bodies.

Key findings

Overall, Thailand has laws and subordinate legislation which appear to reflect many
provisions under C. 188 but these laws are scattered and overlapping, and are managed by
various governmental agencies. The related laws can be categorized into three groups,
namely laws related to:

1. Labour protection overseen by the Ministry of Labour

2. Fishing vessels and equipment overseen by the Department of Fisheries under the
Ministry of Agriculture and Cooperatives
3. Safety of vessels and qualifications of seamen overseen by the Marine Department
under the Ministry of Transportation.

To analyse whether Thai laws are in line with each provision of C. 188, all three groups of
laws have been read together. In general, the labour-related laws apply to fishers in
employment at sea and thereby exclude self-employed fishers and fishers working in
freshwater. Also with regard to scope, laws related to fishing and vessels mostly apply to
fishing vessels that are larger than 10 or 30 gross tonnage thereby leaving out smaller
vessels.

2Guideline
to undertake gap analysis of the Work in Fishing Convention 2007 (No. 188), available online at
http://www.ilo.org/wcmsp5/groups/public/@ed_dialogue/@sector/documents/publication/wcms_161223.pdf

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) iv
With regard to definitions, Thai law lacks the clear definitions of fishing vessel owners,
skippers, fishers, and their respective roles as required by C. 188. Thai laws instead stipulate
duties of “employers” and “licensees” for fishing and navigation of vessels that could cover
fishing vessel owners and/or skippers.

Thai laws seem to have higher standards than those of C. 188 on issues such as minimum
wage and hours of rest.

On other issues, Thai laws and regulations establish rules and mechanisms for provisions in
the Convention, but these are not fully in line with the standards set by C. 188. For instance,
the crew list is not required for all employers but only those with ten employees or more
while accommodation and toilet provisions are required only for vessels of 30 and 60 gross
tonnage respectively. Employers are required to repatriate workers in some situations but
these are more limited than requirements under C.188. Existing provisions mandating
licensees of vessels to ensure medical care (i.e. first-aid medicine, a trained first-aider on
board, a referral system for sick crew members) only apply to licensees of larger vessels.

Other issues such as occupational health and safety are addressed in Thai law by three
different laws without coordination. Hence, they are overlapping. Moreover, it is still unclear
how Occupational Safety, Health and Environment Act B.E. 2554 (2011) could be applied to
fishers in practice.

In addition to the definition and scope gaps mentioned above, there are also clear gaps
between Thai law and the general provisions of C. 188. Examples include: one, fishers are
not yet covered by social security-related laws although the Thai government is in the
process of extending the coverage of social security and workmen compensation law to
fishers. (Even after the extension, the social security system in Thailand would not provide
portability or special features suitable for the workers in fishing). Two, the law on the
Employment and Job Seeker Protection does not prohibit recruitment agencies from
charging fees to Thai workers. Three, Thai law lacks measures to ensure medical care for
crews of fishing vessels of 24 metres or more. Four, Thai legislation does not adequately
distinguish between the responsibilities of fishing vessel owner and skipper.

Other gaps in Thai law could call for either adjustments in order to meet the requirements of
the Convention, or recourse to its flexibility clauses allowing exclusion from the
requirements of the Convention or from certain of its provisions of limited categories of
fishers or fishing vessels, or for the progressive implementation of certain provisions. The
Convention makes the use of these flexibility clauses subject to prior consultation with the
representative organizations of employers and workers concerned, and in particular the
representative organizations of fishing vessels owners and fishers, where they exist. The use
of the flexibility clauses is elaborated in Annex I.

The implementation of existing provisions has proved to be a challenge. For example,

Thailand does not have a single system to implement laws related to C. 188 but enforcement
of each law has its own mechanisms and competent authority. The Command Centre for

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) v
Combating Illegal Fishing (CCCIF) was established in 2015 to be a temporary coordinating
agency until its work is transferred to the Department of Fisheries (DoF). However, the role
and responsibility of the DoF in connection to other agencies is still unclear. Secondly, not all
agencies have the necessary resources for conducting inspections. For example, the MoL
does not have vessels for at-sea inspections while vessels of the DoF may not be able to go
beyond 12 nautical miles, or nm. Thirdly, enforcement officials of related agencies need
deeper knowledge on topics and existing laws and regulations related to work in fishing.
Funding and technical capacity for inspection and enforcement are known challenges.
Examples include the lack of thorough-going, private worker interviews at-sea and in Port-
in/Port-out centres.

Conclusions and recommendations

Due to high number of laws related to work in fishing—approximately 26 laws and

subordinate legislation are considered in this analysis—the Government of Thailand may
consider enacting new legislation to implement C. 188 in the same way it enacted the
Maritime Labour Act B.E. 2558 (2015) to implement the Maritime Labour Convention 2006.
The law should set clear roles and responsibilities of each governmental agency as well as
take into account the important role of the Navy and its capacity to conduct inspection at
sea. The law could address all the gaps identified in this report without amending many
existing laws. A single piece of legislation could also help ease implementing of the new laws
by related government agencies. In the event that a single piece of legislation is not feasible,
the Government could amend laws and regulations to be in line with the standards. The
Government is also encouraged to consult the Work in Fishing Recommendation, 2007 (No.
199) which supplements C. 188, as it provides guidance on how the provisions may be
implemented.

With a view to reaffirm and strengthen the Royal Thai Government’s commitment to
promoting decent work in its fishing and seafood industry, the Government should be
encouraged to consider ratification of the Work in Fishing Convention. Ratification would
give international visibility to the significant efforts made by the Government and would
facilitate the dialogue with the ILO supervisory bodies on measures taken. Ratification of the
Convention would also help to guide policy development and technical assistance, both in
Thailand and globally, and would reinforce the promotion, protection and respect for the
rights and principles enshrined in Convention No. 188.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) vi
Chapter 1. Research Objectives and Methodology

This gap analysis was conducted based on guidelines developed by the ILO for an assessment of
national laws and regulations vis-à-vis the Work in Fishing Convention, 2007 (C. 188).3 The
analysis consists of a detailed legal analysis of those provisions of national laws regulations and
other measures that give effect to the provisions of C. 188. It also indicates the discrepancies
between Thai laws and C. 188 and provides recommendations where changes or amendments
are needed to bring national laws and regulations in line with provisions of C. 188. By identifying
the discrepancies and providing recommendations, the gap analysis will help the Government of
Thailand determine the country’s readiness for ratification of C. 188.

The analysis began with an initial review of existing Thai laws, policies and regulations relevant
to C. 188, and then synthesized information into a C. 188 matrix. The list was revised following
four focus group meetings conducted on 16 - 17 November 2016 with government officials from
relevant Ministries, representatives of employer and worker associations, as well as civil society
organizations. The full list of organizations represented by participants can be found in Annex 2.
The main objective of the qualitative focus group consultations was to verify the results obtained
through the desk review, to receive updated information and to provide insights regarding the
practical implementation of the legislation under the scope of this study.

Chapter 2. Background

2.1 Situation

The nature of work in fishing is unique. The work is hazardous, in part because of the long
working hours, driven by a wage system that links pay to the size of the catch. The fishing vessel
is an isolated workplace where regulations and the scope for inspection are limited, and there is
limited time on land for lodging complaints.

Numerous allegations of serious human and labour rights abuses in the Thai commercial fishing
industry made in the last few years describe an industry characterised by forced labour and poor

3 Guideline to undertake gap analysis of the Work in Fishing Convention 2007 (No. 188), available online at

http://www.ilo.org/wcmsp5/groups/public/@ed_dialogue/@sector/documents/publication/wcms_161223.pdf

Situation and Gap Analysis of the Work in Fishing Convention (No. 188)
working conditions in terms of earnings, social protection, working hours, physical safety,
involving psychological and sexual abuses, and deaths.

Thailand has ratified the ILO Conventions on the elimination of child labour and forced labour,
and the ILO Committee of Experts repeatedly urged “the Government to take the necessary
measures to ensure that migrant workers, particularly those in the fishing industry, are fully
protected from abusive practices and conditions that amount to the exaction of forced labour.”

While some improvements have been made in the legal framework and application of laws and
policies on trafficking, labour protection, social security and education relevant to work in the
Thai fishing and seafood industry, there are still some gaps in the legislative framework that
need to be addressed. A known gap is the regulation of work on fishing vessels which is—
historically, both in Thailand and around the world—only lightly controlled.

2.2 Relevant statistical data

This lack of controls can be particularly menacing for migrant workers who make up the vast
majority of the Thai fishing workforce. According to the data of the Government, in 2015 there
were approximately 151,000 migrant workers in sea fishing sector registered with the Ministry
of Labour. There are two types of migrant workers in Thailand. Most of them enter Thailand
irregularly and then were regularized by registering under the Government’s Amnesty (‘pink
card’) scheme established by resolutions of the Cabinet. A smaller number of migrant workers
enter Thailand in accordance with Memoranda of Understanding (MoU) between Thailand and
countries of origin. It was reported in 2015 that there were around 22,225 MoU workers working
on fishing boats in Thailand.

In 2014, there were 60,285 migrant workers registered to work in the sea fishing sector during
26 June 2014 to 31 March 2015. 30,401 workers thereof were allowed to work for another year
(1 April 2015 – 31 March 2016). In 2015, more workers were registered to work in this sector
(75,959 workers) and 23,884 thereof received an extension to work in 2016. In 2016, the new
registration of fishers was reduced to 17,784 workers (17,446 ‘pink card’ holders and 1,968
national verification). Most workers in the sea fishing sector are from Myanmar followed by
Cambodia while few of them are from Lao People’s Democratic Republic. See Annex 3 for the

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 2
Number of migrant workers allowed to work temporarily in the sea fishing sector in Thailand,
2014 – 2016.

During 2014 - 2016, the National Council for Peace and Order (NCPO) and the Cabinet issued
announcements or resolutions to allow irregular migrant workers from Myanmar, Laos, and
Cambodia to register as workers in the fishing sector and obtain permission to work temporarily
in Thailand. Each year, the registration period is opened one or two times and workers can
register to work for a period of one year.

The Department of Fisheries reports that as of 31 October 2016, 10,991 fishing vessels had
obtained fishing permits from the Government. Of those, 8,964 are vessels undertaking fishing in
the Gulf of Thailand while 2,027 are vessels operating in the Andaman Sea. Most fishing vessels
in the Gulf of Thailand are between 20 and 60 gross tonnage (4,477 vessels) followed by 10 to 20
gross tonnage (2,463), 60 to 150 gross tonnage (1,945) and 150 or more gross tonnage (79).
Similarly, most fishing vessels in the Andaman Sea are 20 to 60 gross tonnage (947), but there
are more vessels of 60 to 150 gross tonnage (584) than 10 to 20 gross tonnage (466). Few vessels
are over 150 gross tonnage (30). Approximately 402 vessels in the Thai fishing fleet are 24
metres or longer, a threshold used in C. 188 for application of some standards.4

In terms of enforcement, the government allocated a budget of 22,907,300 Thai Baht

(approximately USD 660,000) for fishing vessels and labour inspection in the fiscal year 2017 (1
October 2016 – 30 September 2017).5 Its plan is to conduct 144 inspections in 24 provinces.

2.3 Legal framework for protection of fishers

Thailand has 15 pieces of laws, at least 11 subordinate legislation as well as an NCPO order
under supervision of 11 agencies that are relevant to Convention 188.

Table 2: Relevant laws and responsible agencies

Laws and subordinate Responsible Description Licenses

legislation Agencies

4 Data collected in 2016 from the Regional Fishing Vessels Record (RFVR), in collaboration with the Department of Fisheries.
5 Fishing Control and Surveillance Division, Multidisciplinary Plan to address issues on migrant workers and human trafficking.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 3
Labour protection
Labour Protection Act Minister of Regulate employment practices
B.E. 2541 (1998) (LPA) Labour by providing minimum labour
(Department standards in terms of minimum
of Labour wages, working hours, holidays,
Protection leave etc. It applies to national
and Welfare) and non-nationals.
Subordinate legislation issued under the LPA
- Ministerial Regulation Concerning Labour Protection in Sea Fishery Work B.E. 2557
(2014) (LPF)
- Subordinate legislation on employment contract for sea fishers, labour inspectors,
criminal offences.
Act on the Minister of Establish labour courts as a
Establishment of and Justice and specialized court to address
Procedure for Labour Minister of labour cases which are different
Court, B.E. 2522 (1979) Interior from other civil and criminal
cases.
Regulation of the Ministry of Provide advance payment for
Ministry of Finance on Foreign Thais who are stranded abroad
Advance Payment to Affairs i.e. for repatriation.
assist Thai nationals
living abroad B.E. 2549
(2006)
Immigration Act B.E. Minister of Regulate migration into and out Temporary
2522 (1979) Interior of Thailand, Provisions related to passport
permit to temporary stay in the and visa
kingdom, residency and
deportation.
Working of Alien Act Minister of Reserve certain occupations to Work
B.E. 2551 (2008) Labour Thai people while restricts permit for
(Department foreigners generally from seeking migrant
of employment in those workers
Employment) occupations.
Employment and Job- Minister of Focus on Thai job seekers for
Seeker Protection Act, Labour work in Thailand and oversea and
B.E. 2528 (1985) (Department license needed for Recruitment
of agencies
Employment)
Royal Ordinance on Minister of • To regulate the conduct of
Importation of Aliens to Labour business of bringing migrant
work with employers in (Department workers to work in Thailand
the Kingdom B.E. 2559 of • To help improve Thailand’s
(2516) (ROIA) Employment) management of recruitment

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 4
 agencies and to prevent
migrant workers from being
exploited and prevent
trafficking in persons, debt
bondage, and forced labour, as
well as promote the rights and
benefits of the migrant
workers.
Cabinet’s Solutions and Minister of Policy to provide health check-up Health
Announcements of Public Health and health insurance for migrant Certificate
Ministry of Public Health workers (‘pink card’ holders)
Occupational Safety, Minister of It is unclear whether it is
Health and Environment Labour applicable to fishers and, if this is
Act B.E. 2554 (2011) (Department the case, this would make
of Labour enforcement rather problematic.
Protection
and Welfare)
Social Security Act B.E. Minister of Establish a social security system
2533 (1990) Labour (Social 1) a contributory scheme
Security under Section 33 for
Office) workers in the formal
sector (8 benefits)
2) a scheme under Section
39 (7 benefits) for former
insured employees and
3) a voluntary scheme for
workers in the informal
sector
Workmen Minister of Establish a worker compensation
Compensation Fund Act Labour (Social fund to provide benefits for
B.E. 2537 (1994) Security employees who suffered injury
Office) and sickness, disability and death
as a result of performing their
work duties.
Fishing
Royal Ordinance on Minister of • To eliminate illegal fishing License for
Fisheries B.E. 2558 Agriculture and promotion of fishing
(2015) (ROF) and sustainable fishing equipment
Cooperatives industry.
(Department • Establishes five
of Fisheries) mechanisms including
licensing system, vessel
monitoring system, vessel

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 5
 inspection, traceability
system and effective law
enforcement.
Subordinate legislation issued under the ROF
- Ministerial Regulation on Occupational Safety, Health, and Welfare System of Crews
in Fisheries B.E. 2559 (2016) (OSHW)
- Ministerial Regulation on Permit for Commercial Fishing B.E. 2559 (2016)
- Ministerial Regulation on Permit for Fishing in High Seas B.E. 2559 (2016)
- Announcements related to seaman book, commercial fishing, fishing vessels to be
monitored, PIPO procedures, VMS and observer.
Act Governing the Right Minister of Define Thailand’s territorial
to Fish in Thai Fishery Agriculture waters, designate fishing rights
Waters, B.E. 2482 and and prohibit fishing in Thai
(1939) (RTF) Cooperatives waters by foreign vessels.
(Department
of Fisheries)
Vessels
Thai Vessels Act B.E. Minister of Prescribe requirements to Certificate
2481 (1938) (TV) Transport register Thai vessels and to of
(Marine acquire the right to engage in Registration
Department) trading in Thai waters.
Navigation in Thai Minister of Regulate the commute of vessel Ship’s
Waters Act B.E. 2456 Transport (navigation lane, anchor etc), license
(1913) (NTW) (Marine issue licenses for use and control
Department) of vessels in order to ensure
safety and prevent pollution
from vessels, regulate ports and
water obstruction as well as
competencies of skippers and
seaman, inspection of vessels.
Subordinate legislation issued under the NTW
- Regulation on Fishing Vessels Inspection, Criteria, Methods and Conditions on
Issuance of Certificate of Engine Fishing Vessels Inspection B.E. 2558 (2015)
(Certificate of inspection) (FVI)
- Regulation of Marine Department on Criterion and Conditions for Issuance of
Seaman Books B.E. 2558 (2015) (Seaman Book)
- Laws related to examinations and certificates for skipper, helmsman and engineer
certificate
Coordination
National Council for Command Establish the CCCIF to coordinate
Peace and Order Centre for work on IUU.
(NCPO)’s Order No. Combating
10/2558, 1 May 2015 Illegal Fishing

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 6
 (CCCIF)
Draft law Royal Thai Transform the MECC to have
Police and authority to command and order
Thailand instead of coordinating the use of
Maritime, vessels to enforce the laws.
Enforcement
Coordination
Centre
(MECC)
For comparative
purposes
Maritime Labour Act Departments Provide labour protection for
B.E. 2558 (2015) under the seafarers, Implement MLC
Ministry of
Labour,
Ministry of
Public Health,
Ministry of
Transport
and Ministry
of Foreign
Affairs

Chapter 3. Gap Analysis: the Work in Fishing Convention, 2007 (No. 188) and Thai national
laws, regulations and other measures

In this Chapter, each Article of C.188 is compared against related Thai domestic laws, regulations
and other measures. The result of such a comparison is analyzed into three categories;
1) Existing implementing measures: describes existing laws, regulations and other
measures which reflect the said Article
2) Gaps identified: presents what are lacking in laws, regulations and other measures
3) Recommendations: provide a guideline for the Government to adjust or amend their
laws, regulations and other measures to be in line with Articles under C.188

3.1 Definitions and scope

3.1.1 Definitions (Article 1)

Existing implementing measures

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 7
“Commercial fishing”
Section 5 of the Royal Ordinance on Fisheries (ROF) defines “Commercial fishing” as “fishing
operations using a fishing vessel of a size from ten gross tonnage or a fishing vessel fitted with an
engine of a horse power as prescribed by the Minister.”6 An announcement by the Minister of
Agriculture and Operatives further prescribed that fishing vessels with an engine of 280
horsepower or more shall be commercial fishing. 7 It deems that fishing vessels of such a size or
above are said to conduct commercial fishing operations.

As opposed to commercial fishing, “artisanal fishing” was defined as “fishing operations in

coastal seas in which a fishing vessel is used, or in which a fishing gear is used without a fishing
vessel, but does not include commercial fishing”. The “coastal seas” refers to seas lying within
the Kingdom, extending up to three nautical miles from the baselines. Artisanal fishing
associations urged the Government to issue a Ministerial Regulation to expand coastal seas
further than three nautical miles and the matter is under consideration by the Department of
Fisheries. 8 Many artisanal fishers fish for commercial purposes—i.e. the fish caught are sold to
intermediaries. It is rare today to find a subsistence fisher in Thailand.9

The Department of Fisheries is revising the definition of commercial fishing and artisanal fishing
under the Royal Ordinance on Fisheries B.E. 2558 (2015). There is no definition of “subsistence
fishing” and “recreational fishing” in the laws within the scope of this study.

The Ministerial Regulation Concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014)
does not define “commercial fishing” and does not make any distinction between workers in
commercial or subsistence fishing. It focuses on “sea fishery work” which means “work or any
other act related to fishing in the sea using fishing vessels or other vessels related to fishing”.10

6
Section 5 of the Royal Ordinance on Fisheries B.E. 2558
7
Section 1 of the Announcement of the Minister of Agriculture and Operatives on Prescribing Fishing Vessel fitted with Certain Engine of a Horse

Power to be Commercial Fishing 2016

8
Information from participants of the focus groups
9
Information from participants of the focus groups

10 Article 2 Paragraph 2 of C. 188 reads: “In the event of doubt as to whether a vessel is engaged in commercial fishing, the question shall be

determined by the competent authority after consultation.” The scope of commercial fishing could be applied to fish carriers unless clearly

covered under the Maritime Labour Act implementing the MLC, 2006.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 8
“Competent Authority”
In each Act, it defines who is responsible for the implementation of the law and who are the
competent officials. For example, the Royal Ordinance on Fisheries appoints the Minister of
Agriculture and Cooperatives as responsible for the execution of the Royal Ordinance and gives
the Minister power to issue subordinate legislation. It defines “competent official” as an official
appointed by the Minister to perform actions in accordance with the Royal Ordinance. (See the
list of responsible agencies in Table No. 2).

“Consultation”
There is no legal provision providing the definition of “consultation” similar to that prescribed in
the Convention, although some Thai laws establish a mechanism to facilitate discussion.

Section 77 of the Draft Constitution of Thailand prescribes that the State shall consult
stakeholders both prior to and after the enactment of any law.11 It also requires the State to take
into account the results of the consultation at every stage of the legislative process.

The Department of Fisheries, the Ministry of Labour, and the Council of State have adopted the
practice of tripartite consultation in their work in relation to drafting law but there is no
announcement or written guidelines for government officials.

The Royal Ordinance on Fisheries establishes a National Committee and a Provincial Fisheries
Committee. The committee members of the National Fisheries Committee include government
officials, representative of employer associations (President of the National Farmers’ Council,
the Thai Chamber of Commerce and Federation of Thai Industries) and association
representatives of coastal fisheries, offshore fisheries, fisheries outside Thai waters, inland
fisheries, aquaculture and aquatic animal processing, persons having knowledge on natural
resources and the environment as well as fisheries academics. Worker organizations are not

11 Section 77 paragraph 2 “Prior to the enactment of any law, the State shall conduct consultation with the stakeholders, thoroughly and

systematically assess possible impact of the law, and disclose results of the consultation and the assessment to the public as well as taking such

results into consideration at every stage of the legislation process. While the law comes into force, the State shall undertake an evaluation of the

achievement of the law on a specified periodic basis, including the feedbacks from all stakeholders thereof, with a view to developing all laws in a

manner corresponding with and appropriate for the changing contexts.“

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 9
specifically mentioned, and it is unclear whether association representatives from each group
will represent employers or workers.

At present, the National Fisheries Association of Thailand (NFAT) and the Thai Overseas Fisheries
Association (TOFA) are representing boat owners in Thailand while ECOT is also joining in the
consultation.

There is no worker organization for fishers, per se, represented in the policy dialogue but groups
including the State Enterprises Workers Relations Confederation (SERC), Stella Maris, and
members of the Migrant Working Group are participating in tripartite consultations.

‘Fishing vessel owner’ / ‘Skipper’ / ‘Fisher’

The definitions of Fishing vessel owner, Skipper and Fisher in the laws reviewed in this report are
diverse, as shown in the table below.

Table 3: Definitions of key C. 188 terms in Thai law

Legal provision “Fishing vessel “Skipper” “Fisher”

owner”
Section 2 of the “employer” “employer” “employee”
Ministerial Regulation
Concerning Labour
Protection in Sea
Fishery Work (LPF)
B.E. 2557 (2014)
Section 5 of the Royal “Owner of a “Vessel controller Seaman (คนประจําเรือ)
Ordinance on vessel (เจาของเรือ) (ผูควบคุมเรือ) means a means a crew
Fisheries B.E. 2558 means a person person having member or any
(2015) having the command or charge of person who is
ownership or the a fishing vessel. assigned regular
right to functions on a fishing
possession of a vessel, excluding the
fishing vessel. Vessel controller
thereof.
Licensee means a
person granted a
license or a
permit that
authorizes

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 10
 him/her to
undertake an
action pursuant to
this Royal
Ordinance

The Right to Fish in N/A Vessel controller

Thai Fishery Waters (ผูควบคุมเรือ) means a
Act B.E. 2482 (1939) master of a vessel
(นายเรือ), boatswain
(สรั่ง), helmsman (ไตกง),
steersman (นายทาย
คนถือทาย) or any
person in charge of
commanding and
responsible for a
vessel, but shall not
include a pilot officer
(ผูนํารอง)”
Section 5 of the Thai N/A Vessel controller Seaman (คนประจําเรือ)
Vessels Act B.E. 2481 (ผูควบคุมเรือ) means a means a person who
(1938) master of a vessel is assigned regular
(นายเรือ), boatswain functions on a vessel.
(สรั่ง), helmsman (ไตกง),
steersman (นายทาย
คนถือทาย) or any
person in charge of
commanding and
responsible for a
vessel, but shall not
include a pilot officer
(ผูนํารอง)”
Section 3 of the N/A Master (นายเรือ) means Seaman (คนประจําเรือ)
Navigation in Thai “a person who means a person who
Waters Act B.E. 2456 controls a vessel is assigned regular
(1913) propelled by functions on a vessel.
machinery or sail, or
any other vessel but Crew (ลูกเรือ) seaman
does not include the who is not a master
pilot (ผูนํารอง)”

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 11
“Fishing vessel owner”
There is no specific definition of “fishing vessel owner” in labour-related laws but the term
“employer” under the LPF could capture both fishing vessel owner and skipper. Section 2 of the
LPF states that “employer” means an employer as defined in the LPA and includes an owner of a
fishing boat who uses, or allows another person to use, a fishing boat to perform sea fishery
work for a purpose of sharing profits. (But “employer” does not include an owner of a fishing
boat whose boat is rented to another person to perform sea fishery work without his or her
involvement). Under the LPA, “employer” refers to a person who agrees to accept an employee
to work by paying wage and includes 1) a person entrusted to act on behalf of the employer, 2)
in case where an employer is a juristic person, the term also includes a person authorized to act
on behalf of the juristic person an a person entrusted by an authorized person to act on his or
her behalf.

Royal Ordinance on Fisheries B.E. 2558 (2015) defines owner of a vessel as “a person having the
ownership or the right to possession of a fishing vessel”.

“Skipper”
There is no specific definition of “skipper” under the labour related law but the term “employer”
under the LPF could capture skipper as explained above. Definitions of skippers under laws
related to fishing and vessels are slightly different (either vessel’s “controller” or “master”) but
in general can be understood to mean someone who has command of a fishing vessel and has
responsibility on the fishing vessel.

“Fisher”
There is no specific definition of “Fisher” but the term “employee” and its definition under the
Ministerial Regulation Concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014) (LPF)
could capture “employed fisher” whether they are hired by day/week or month or whether they
are paid on the basis of salary or a share of the catch. The LPF defines employee as “a person
who agrees to work for an employer in return for wages regardless of the term used”.12
However, it does not cover self-employed fishers. This group of workers is not covered by the
Labour Protection Act B.E. 2541 (1998) either.

12See also Section 575 of the Civil and Commercial Code and Section 5 of the Labour Protection Act B. E. 2541 which apply to all employment

contracts.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 12
The equivalent terms for fisher under fishing- and vessel-related law are “seaman” and “crew.”
Section 5 of the Royal Ordinance on Fisheries B.E. 2558 defines seaman as a crew member or
any person who is assigned regular functions on a fishing vessel, excluding the “vessel
controller” thereof. Section 5 of the Thai Vessels Act B.E. 2481 (1938) and Section 3 of the
Navigation in Thai Waters Act B.E. 2456 (1913) both defines Seaman (คนประจําเรือ) as a person
who is assigned regular functions on a vessel. The latter has the term “Crew” (ลูกเรือ) which
means seaman who is not a master.

Some Thai artisanal fishers may be self-employed while working on larger boats and in those
circumstances employees, and are subject to the authority and command of skippers. The fact
that all migrant fishers are required to be registered by employers under the law on immigration
and working of alien signifies that there is a proven employee-employer relationship.

“Fisher’s work agreement”

Section 575 of the Civil and Commercial Code: “A hire of services is a contract whereby a person,
called the employee, agrees to render services to another person, called the employer, who
agrees to pay remuneration for the duration of the services.”

Section 5 of the Labour Protection Act B.E. 2541 (1998): “Contract of employment” as “a
contract, whether written or oral, expressed or implied, whereby a person called an Employee
agrees to work for a person called an Employer, and the Employer agrees to pay wages for the
duration of work.” The definition under the LPA would appear to be in line with the Convention.

Table 4: Definitions of ‘Vessel’ and ‘Fishing Vessel’ in Thai law

Legal Provision “Vessel” “Fishing vessel”

Section 2 of the N/A “vessels used in sea fishing work”.

Ministerial
Regulation It further defines that “sea fishing work”
Concerning refers to work or other acts related to
Labour Protection fishing in the sea by using fishing vessel or
in Sea Fishery other vessels related to fishing. This
Work B.E. 2557 definition covers transship and other
(2014) services vessels but does not cover boats
used for fishing in freshwater.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 13
Section 5 of the N/A “a vessel of any size used or intended for
Royal Ordinance use for the purposes of commercial
on Fisheries B.E. exploitation of aquatic animal resources
2558 (2015) support ships, fish processing vessels,
vessels engaged in transhipment and
carrier vessels equipped for the
transportation of fishery products, except
container vessels.”
Section 5 of the “any kind of water vehicles” N/A
Thai Vessels Act
B.E. 2481
Section 3 of the “a water vehicle of any “a vessel that is used for fishing aquatic
Navigation in Thai kind, whether used for animals or any other living resources in
Waters Act B.E. carrying, transporting, the sea”
2456 towing, tugging, pushing,
lifting, digging or dredging
and shall include a vehicle
of any other kind that can
be used on water in the like
manner”

“Gross tonnage”, “Length”, and “Length overall”

The Marine Department notes that the gross tonnage measurement method used by is in line
with the International Convention on Tonnage Measurement of Ships, 1969. (See Regulations on
Boat Inspection, Criteria, Methods, and Conditions on Issuance of Fishing Boat Inspection
Certificate B.E. 2558, Title E: Measurement of fishing boat and calculation of boat in tons).13

“Recruitment and placement service”

The Employment and Job-Seeker Protection Act B.E. 2528: “Employment” means “a business
that provides a job to a job-seeker and provides a worker to the employer, with or without
service charge, including any request for money, property or other benefits in return of service
to provide work for job-seekers.”

13 if a Member decides to use gross tonnage in place of length (L) (see Article 5) as the basis for measurement in accordance with the equivalence

set out in Annex III, the equivalent gross tonnage figure has to be calculated in accordance with the regulations of Convention on Tonnage

Measurement of Ships, regardless of where the vessel is being operated. It is important to recall here that Annex III of C. 188 applies only to new

vessels, not existing vessels. The Convention does not refer to using any other gross tonnage calculation.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 14
The Royal Ordinance on Importation of Aliens to Work with Employers in Thailand B.E. 2559
(2016): “Importation of aliens to work” means any undertakings to bring aliens who are allowed
to enter the country according to law on immigration under Memorandum of Agreement or
Understanding between Thailand and other country or according to policy of the Government on
employing workers to work with employers in the country, whether there is service fee or
compensation or not.

Gaps identified
• Commercial fishing: Thai law categorizes “commercial fishing” and “artisanal fishing” by
the size of vessels and not by the purpose of fishing. (There is no definition of
“subsistence fishing” and “recreational fishing”).
• Consultation: Although some government agencies organize consultation on work in
fishing that includes government officials, vessel owners’ organizations, and fishing
worker organizations in practice, there is no law, regulations or mechanism, which
formalize such a process.
• Fishing vessel owner/Skipper/Fisher: Thai laws lack the clear definitions of fishing vessel
owners, skippers, fishers, and their respective roles as required by C. 188 and this could
be a challenge for the application of the Convention. The laws instead stipulate duties of
“employers” and “licensees” for fishing and navigation of vessels that could cover fishing
vessel owners and/or skippers. Moreover, C.188 considers skipper as “the fisher having
command of a fishing vessel” while Thai law considers the skipper as “an employer”. This
could make it difficult to impose specific obligations on fishing vessel owners, skippers
and fishers as required by C.188. It should be noted that different terms of skippers and
fishers under various laws may also cause confusion.

• Gross Tonnage, Length and Length Overall: Application of some provisions of C. 188
require vessels to be categorised according to length and days at sea, but Thai legislation
generally classifies vessels based on gross tonnage (g.t.).
• Definitions of “Fisher’s work agreement”, “Vessel and Fishing vessel” and “Recruitment
and placement service” appear to have no gap.

Recommendations
• Consultation: The Government of Thailand should consider establishment of a formal
mechanism for consultation on work in fishing that includes government officials, vessel

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 15
 owners’ organizations, and fishing worker organizations. Such a mechanism could be
used to hold the consultations required by the Convention when having recourse to its
flexibility clauses. In view of the number of migrant fishers, the Government should also
consider amending the Labour Relations Act to lift restrictions on the right to organize of
migrant workers, in accordance with the ILO standards and principles on freedom of
association.
• Fishing vessel owner/Skipper/Fisher: The Government of Thailand should define the term
Fishing vessel owner, Skipper and Fisher clearly since it will be linked to their obligations
imposed upon by C.188.
• Gross tonnage, Length and Length overall: As the Government of Thailand has data on
the length of vessel and duration of days that vessels remain at sea, it may use the data
in the application of certain provisions of C. 188 for fishing vessels of 24 metres in length
or more, as well as those remaining at sea for more than three or seven days.

3.1.2 Scope (Article 2)

Existing implementing measures, Gaps identified

The Convention covers all fishers and all fishing vessels engaged in commercial fishing
operations. Thai laws related to this Conventions are scattered and do not provide coherent
coverage.

• Ministerial Regulation Concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014)
(LPF), a subordinate legislation under the Labour Protection Act (LPA)

Section 22 of the LPA allows issuance of Ministerial Regulations to provide protection for
employees working in agriculture, sea fishing, loading or unloading of marine cargoes,
home work, transport work and other work as provided in the Royal Decree differently
from the LPA. The LPF, which provides labour protection for fishers, only covers
employed fishers doing “sea fisher work” whether the operations are commercial fishing
or not. “Sea fisher work” is defined as work and activities involving sea fishing on fishing
boats or other types of boats related to fishing. It does not covers freshwater fishing
work. (In consultations, the Ministry of Labour opined that employees in such sectors are
covered by the LPA. However, provisions under the LPA may not be practical for workers
in boats. Participants in the focus group raised concerns and difficulty if the law has to
apply to freshwater and artisanal fishers).

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 16
• Ministerial Regulation on Occupational Safety, Health, and Welfare System of Crews in
Fisheries B.E. 2559 (2016) (OSHW), a subordinate legislation issued under Section 37 of the
Royal Ordinance on Fisheries B.E. 2558 (2015) (ROF)

The ROF deems that vessels from 10 gross tonnage are “commercial vessels” and
therefore leaves outside the regulation’s scope commercial fishing vessels under 10 gross
tonnage. The OSHW, which regulates issues related to occupational health and safety,
accommodation and welfare in the commercial fishing vessels, covers commercial fishing
vessels that are 30 gross tonnages or larger. The subordinate legislation governing the
Port-In/Port-Out system (PIPO) only apply to vessels from 10 gross tonnages with
destructive equipment and all vessels 30 gross tonnages or larger. Vessel Monitoring
System (VMS) requirements apply only to vessels 30 gross tonnages or larger. The
subordinate legislation related to observers on vessels is applied only to licensees
granted permit to fish in high seas.

• Regulation on Fishing Vessels Inspection, Criteria, Methods and Conditions on Issuance of

Certificate of Engine Fishing Vessels Inspection B.E. 2558 (2015) (FVI), a subordinate
legislation issued under Navigation in Thai Waters Act B.E. 2456 (1913) (NTW)

The FVI requires fishing vessels to meet certain standards (e.g. radio, safety tools) if the
vessel is propelled by engines built after 30 November 2015, or when the vessel applies
for inspection and operational permit. Most safety requirements are imposed upon
vessels larger than 10 gross tonnages.

Recommendations
To prepare to ratify the Convention, the Ministry of Labour should organize a consultation
among the competent authorities and representative organizations of employers and workers
concerned to determine whether freshwater, artisanal, and self-employed fishers or vessels
under 10 or 30 gross tonnage, for example, should be excluded from the requirements of the
Convention, or of certain of its provisions. Should Thailand wish to exclude some categories of
fishing operations after tripartite consultation, it shall include in its first report the list of the
excluded categories of fishers and reasons for exclusions, stating the respective positions of the
representative organizations of employer and workers concerned. It will also need to describe in
subsequent reports any measures taken to provide equivalent protection to the excluded

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 17
fishers. It should be noted that the competent authority would still have to take measures to
extend progressively the requirements of the Convention to such categories of fishers or fishing
vessels.

The application and enforcement of overlapping legislation should be consulted with

stakeholders and progressively extended to cover those excluded groups.

3.2 General principles

3.2.1 Competent authority and coordination (Article 7)

Existing implementing measures

The National Council for Peace and Order (NCPO)’s Order No. 10/2558, 1 May 2015 established
the Command Centre for Combating Illegal Fishing (CCCIF) to combat illegal, unreported, and
unregulated fishing. The CCCIF acts as a centre to coordinate the work of relevant agencies
including Ministry of Labour, Ministry of Agriculture and Cooperative (MoAC), Ministry of
Transport (MoT), Ministry of Internal Affair and the Royal Thai Police and Thailand Maritime,
Enforcement Coordination Centre (MECC).

Gaps identified
The CCCIF was set up as a temporary measure to address the IUU issue. The MECC was tasked to
coordinate with other agencies regarding enforcement operations at sea but it does not have
authority to command other agencies. The CCCIF will transfer its work to the Department of
Fisheries (Ministry of Agriculture and Cooperatives) under a draft law that will give the MECC
needed legal standing and authority. However, the division of roles and responsibility among
related agencies regarding protection of fishers now and in the future is not clear.

Recommendations
After the work of the CCCIF is transferred to the Department of Fisheries (DOF), the DOF should
provide an MOU and clear guidelines on roles and responsibility for the agencies responsible for
implementing provisions related to Convention 188. The Government should develop a standard
operating procedure for each agency in order to ensure the implementation of the MOU. Finally,
the Government should establish a coordination mechanism under the law to ensure that labour
protection for work in fishing, including labour inspection work, is effectively coordinated.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 18
3.2.2 Responsibilities of fishing vessel owners, skippers and fishers (Article 8)

Existing implementing measures

The Ministerial Regulation Concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014)
(LPF) imposes obligations on the “employer” to comply with labour standards which includes the
provision of food and water as well as education on working conditions, health and sanitation,
and the usage of fishing and safety equipment before fishers start working (Section 16 - 27).
Section 2 of the LPF defines the term “employers” to cover 1) employers according to the law
related to labour protection (currently, the Labour Protection Act B.E. 2541 or LPA) and 2) fishing
vessel owners who use fishing vessels or allow other persons to use fishing vessels to do fishing
and maintain a share in the profits. It excludes fishing vessel owners who charter their vessels
for fishing without being involved therein.

The term “employers” in Section 5 of the LPA means persons who agree to accept employees for
work by paying wages, including persons entrusted to act on behalf of the employers, and, in
case where an employer is a juristic person, persons authorized to act on behalf of the juristic
person and a person entrusted by an authorized person to act on his or her behalf. This
definition therefore includes skippers who are assigned by employers to command vessels. Apart
from this definition, the Supreme Court also ruled that, in addition to requirements under the
Civil and Commercial Code (CCC) and the LPA, an employee must be subjected to an employer’s
command and comply with orders, rules and regulations related to work.14 The Supreme Court
hence also uses employer’s “authority to command” as one of elements for an employer-
employee relationship to be formed. In sum, fishing vessel owners who gain benefits from
fishing, or skippers, charterers and any person who accept fishers for work by paying wage and
have authority to command them are “employers” and, as such, responsible for obligations
related to labour rights under the LPF.

The Ministerial Regulation on Occupational Safety, Health, and Welfare System of Crews in
Fisheries B.E. 2559 (2016) imposes several obligations related to safety of fishers on the licensee
who is granted a permit to do commercial fishing in or outside Thai waters (high seas) on vessels
of 30 gross tonnage and larger. Licensees under this law are normally the owners of the vessel or
the charterer, which fall under the definition of “fishing vessel owner” under the Convention.

14 Dika 6067/2545. See also Dika 5610/2542.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 19
However, the Ministerial Regulation only imposes two obligations on skippers:
• Educate fishers on how to use boat and fishing equipment, and occupational safety
issues (Section 4)15
• Provide primary medical treatments to fishers (Section 10)

In addition, the Regulation on Fishing Vessels Inspection, Criteria, Methods and Conditions on
Issuance of Certificate of Engine Fishing Vessels Inspection B.E. 2558 (2015) (FVI) requires the
owner of fishing vessels or its agent to comply with standards necessary to get a certificate of
inspection and registration of the vessel. These include requirements that vessel have certain
safety equipment depending on the size of vessels (e.g. radio transmitter, fire extinguisher,
compass, GPS, Echo Sounder, Life-raft), and that skippers have specific certificates.

Table 5: Responsible persons in Thai Law and C. 188

Legal Provision Responsible persons Responsible persons under

under Thai Laws Convention No. 188
Ministerial Regulation Employer (Definition of - Owner or Charterer
Concerning Labour Protection employer could cover the - Skipper
in Sea Fishery Work B.E. 2557 owner of fishing vessels
(2014) who allow other person
to use the vessel in order
to share profits, charterer
and skippers who accept
fishers for work by paying
wage and have authority
to command them)
Ministerial Regulation on Licensee who is granted a - Owner or Charterer
Occupational Safety, Health, permit to do commercial
and Welfare System of Crews fishing
in Fisheries B.E. 2559 (2016)
Regulation on Fishing Vessels - Owner of fishing - Owner or Charterer
Inspection, Criteria, Methods vessels or his/her (to provide safety
and Conditions on Issuance of agent equipment)
Certificate of Engine Fishing - Skipper - Skipper (to have

15 “Vessel controllers (of vessels larger than 30 gross tonnage) must educate seaman on the following topics before they perform tasks and

require seaman to sign as evidence. The topic include 1) usage of equipment on the vessel, 2) usage of fishing equipment and rule on fishing

according to duties assigned to seaman and 3) occupational safety on vessel.”

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 20
Vessels Inspection B.E. 2558 certificate)
(2015)

The Occupational Safety, Health and Environment Act, B.E. 2554 (2011) (OSH Act) is not intended
to cover fishers but does not exclude fishers from its application. Unlike Section 22 of the LPA,
the OSH Act does not have a provision that authorizes an issuance of a subordinate legislation to
prescribe special rules for specific groups of workers.

Gaps identified
Overall, there is no clear separation between obligations of fishing vessel owner and skippers,
and the possible designation of a skipper as an “employer” under the LPA definition is likely to
raise difficulties in applying the requirements of C. 188.

Owner: Only laws related to fishing vessel inspection impose obligations directly on the owners
of fishing vessels (or his/her agents), and skippers. The law related to labour protection for
fishers imposes obligation on “employers”--which can include skippers--to ensure labour
standards for fishers. (“Employer” excludes fishing vessel owners who only charter vessels
without gaining profits from fishing). The law related to Occupational Safety, Health, and
Welfare System of Crews in Fisheries imposes obligations on the “licensee” who is granted a
permit to do commercial fishing. Not all owners are licensees. Finally, there is no direct and clear
provision that obliges the fishing vessel owner to ensure that the skipper is provided with
necessary resources and facilities.

Skipper: There are few provisions that impose responsibility directly on the skipper to ensure
safety of the fishers on board and the safe operation of the vessel. Of the specific
responsibilities outlined in C. 188, Article 8 (2), Thai laws only requires that skippers facilitate on-
board occupational safety and health awareness training (Art. 8 (2) d), although the
implementation is in doubt.16 Thai law lacks provisions that oblige skippers to:
• provide such supervision as will ensure that, as far as possible, fishers perform their work
in the best conditions of safety and health (Art. 8 (2) a);
• manage the fishers in a manner which respects safety and health, including prevention of
fatigue; (Art. 8 (2) b). Currently, there is only a provision referring to rest hours which is
below the C. 188 standard and insufficient to ensure safety and health of fishers; and,

16 Information from a CSO.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 21
 • ensure compliance with safety of navigation, watch keeping and associated good
seamanship standards (Art. 8 (2) d)

Moreover, there is no provision ensuring that skippers “shall not be constrained by the fishing
vessel owner from taking any decision which, in the professional judgement of the skipper, is
necessary for the safety of the vessel and its safe navigation and safe operation, or the safety of
the fishers on board.”

Fisher: Under the LPA, employees are obliged to comply with lawful orders of employers.
However, as noted above, the definition of “employer” in the LPA is problematic when applied
to skippers. OSH Act has a provision that employees must comply with the applicable safety and
health measures and, while the Act does not exclude fishers, it is a challenge to apply OSH Act in
practice without subordinate legislation for OSH in vessels.

Recommendations
• Stipulate clearly the distinct roles and obligations of vessels owner, skippers and fishers,
including a stipulation that skippers are not “employers” as defined in the LPA
• Consolidate provisions related to OSH scattered under four different laws
• Consider issuance of subordinate legislation on occupational safety and health in fishing
vessels under the OSH Act to reflect C. 188 provisions
• Take the Ministerial Regulation on OSH issued under the Seafarers Act as an example

3.3 Minimum requirements for work on board fishing vessels

3.3.1 Minimum age (Article 9)

Existing implementing measures

Thai law imposes higher standards than the Convention by prohibiting employers from
employing a person under 18 years of age to work in a fishing boat (Section 4 of the Ministerial
Regulation Concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014)). Moreover, the
Notice of the National Committee for the Elimination of the Worst Forms of Child Labour on
Type of Hazardous Works for Child Labour in Thailand B.E. 2555 (2012) deemed that all work in
sea fishing vessels is hazardous work for children under 18 years old.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 22
Gaps identified
There is no gap. Thai law sets a higher minimum age than that required by the Convention.

The representatives of employer organizations raised concerns that these provisions may bar
young workers between 16 - 18 years old from doing internships or being trained to work in
fishing vessels. Government and civil society organizations argued that strict enforcement of the
minimum age requirement is problematic given the difficulty in determining accurately the age
of young workers.

Recommendations
• The Government could consider allowing admission to work on board fishing vessels
from the age of 16 for the purpose of vocational training and with appropriate
safeguards to ensure that young fishers are not assigned to hazardous activities and night
work.
• The Government should consider improving the process to verify the age of workers and
work with the countries of origin in this regard.

3.3.2 Medical examination (Articles 10 - 12)

Existing implementing measures

The Marine Department Regulation on Rules and Procedure to Issue Seaman Book for Fishing
Vessel B.E. 2558 (2015) issued under Regulation of Marine Department on Examination of
Seaman B.E. 2532 (1989) and the Navigation in Thai Waters Act B.E. 2456 (1913) require Thai
fishers to submit, among other documents, a medical certificate attesting to their fitness to
perform their duties on vessels when applying for a Seaman Book for work onboard a fishing
vessel.

The Announcement of the Prime Minister Office on issuing sea book according to law on fisheries
B.E. 2559 (2016) issued under Section 83 paragraph 3 of the Royal Ordinance on Fisheries B.E.
2558 (2015) requires the vessel owner to submit three documents to apply for a Sea Book for his
or her worker.17 The documents include 1) a copy of work permit according to law on working of
alien; 2) a copy of license to do fishing and 3) a copy of employment contract for a worker to

17 It should be noted here that Thai fishers are required to have Seaman Books while migrant fishers are required to have Sea Books.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 23
work in a fishing vessel. There is no requirement to submit a medical certificate attesting to
fitness to perform their duties on vessels.

The Ministerial Regulation on Occupational Safety, Health, and Welfare System of Crews in
Fisheries B.E. 2559 (2016) requires a licensee of a fishing vessel with of 30 gross tonnage or more
to arrange health check-ups for workers in order for them to obtain medical certificates attesting
to fitness to perform their duties. After that, the licensee shall arrange check-ups for fishers
annually. However, the law prescribes in the next paragraph that migrant workers who went
through the medical check-up with the Ministry of Public Health could use a certificate
therefrom to meet this requirement (Section 11-12). Such a certificate, however, only notes that
workers do not have diseases.

Gaps identified
Thai workers are required to have a medical certificate attesting to fitness to perform their
duties in order to obtain seaman books but this provision is not implemented in practice.18 As for
migrant workers, the Announcement of the Ministry of Public Health requires fishers to submit to
medical check-ups (500 baht) and apply for health insurance (3,200 baht for two years coverage)
during registration for work permits and Seaman Books. The check-up is only for disease
prevention, not to measure fitness for fishing duties.

The Ministerial Regulation on Occupational Safety, Health, and Welfare System of Crews in
Fisheries B.E. 2559 (2016) requires fishers to have a medical certificate attesting to fitness to
perform their duties does not apply to vessels under 30 gross tonnage. It also allows migrant
workers to use a general medical certificate instead of one attesting to fitness to perform their
duties on vessels.

A representative of employer associations disagrees with this requirement since the cost is high
and he opined that the basic medical certificate is sufficient.

Recommendations
• Consider coordinating the three regulations related to medical certificates to be coherent
(including clear ‘fitness’ requirements) and avoid duplication.

18 Information from a CSO.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 24
 • Amend the Announcement of the Prime Minister Office on Issuing Seaman Book
according to Law on Fisheries B.E. 2559 (2016) to require migrant fishers to have medical
examination proving that they are fit for work at sea and implement the requirement for
medical certification under the Marine Department Regulation on Rules and Procedure to
Issue Seaman Book for Fishing Vessel B.E. 2558 (2015).
• Issue a rule or an announcement on medical certification for both Thai and migrant
fishers as required by Articles 10 - 11 of C. 188 regarding the nature of medical
examinations, the form and content of medical certificates, the issuance of a medical
certificate by a duly qualified medical practitioner, the frequency of medical
examinations, and the period of validity of medical certificates. There should also be
additional requirements for medical certification of fishers on fishing vessels of 24 metres
in length and over, or on a vessel which normally remains at sea for more than three days
(Article 12).
• Follow the example provided by the Announcement of the Ministry of Public Health on
Rules and Conditions on Medical Certificate of Seafarers B.E. 2559 (2016) (under Sections
5 and 18 of the Maritime Labour Act B.E. 2558 (2015)) for issuance of a similar regulation
for fishers with modifications appropriate for the fishing sector.19
• Using the flexibility provision, the Government may arrange a consultation to consider
exempting certain groups of workers from the fit-for-work medical certificate
requirement. The consultation should take into account the safety and health of fishers,
size of the vessel, availability of medical assistance and evacuation, duration of the
voyage, area of operation, and type of fishing operation. Such exemption should in no
case apply to fishing vessels of 24 metres in length and over or which normally remain at
sea for more than three days (Article 10 of C. 188).

19 The Announcement prescribes the fit for sea service standards and regulates medical certificate issued by qualified medical practitioners and

approved hospitals. The certificate can also be in Thai and/or English. The cost is approximately 1000-3000 baht depending on whether it is a

public or private hospital. The certificate is valid for two years. Currently, there are 10 hospitals that meet standards and 300 medical

practitioners registered. The Ministry of Public Health is implementing the plan to increase numbers of hospital and medical practitioners. The

Government of Thailand could also consider Paragraphs 6-10 of Recommendation No. 199.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 25
3.4 Conditions of Service

3.4.1 Manning and hours of rest (Articles 13 - 14)

Existing implementing measures

Manning.
Section 19 of the Regulation on Fishing Vessels Inspection, Criteria, Methods and Conditions on
Issuance of Certificate of Engine Fishing Vessels Inspection B.E. 2558 (2015) (FVI) requires a
vessel inspector—taking into consideration the operation and physical model of the vessel—to
prescribe the number of seamen and fishers for each fishing vessel in the certificate on vessel
inspection. This is in line with requirements in Article 13 of C. 188. The Department of Fisheries
issued a guideline specifying minimum manpower for navigation which entails requirements to
have at least a skipper or steersman (may be the same person), a mechanic, cooker and the head
of fishers in each fishing vessel. It also specifies minimum fishers for each type of fishing vessel.

Section 16 - 18 of the FVI requires seamen who are skippers, steersmen and engineers of fishing
vessels to obtain specified certificates.

Hours of rest. Under the Ministerial Regulation Concerning Labour Protection in Sea Fishery
Work B.E. 2557 (2014), Section 5, an employer shall provide a rest period of not less than 10
hours in an 24-hour period and not less than 77 hours in any 7-day period for an employee. An
employer shall prepare a rest period record to be inspected by a labour inspector. In case of
emergency or necessity, an employer may require fishers to work during a rest period, but shall
provide a compensatory period rest to fishers as soon as practicable. The Ministry of Labour
prepared the Por Mor 2 form to manage rest hours for sea fishery work.20

LPA and LPF provisions on working hours and leave provide protection to fishers above the
standards required by C. 188. Sections 12 - 13 of LPF provide fishers with 30 days paid annual
leave and 30 days paid sick leave per year.

Sections 8 and 12 of the Ministerial Regulation on Occupational Safety, Health, and Welfare
System of Crews in Fisheries B.E. 2559 (2016) prescribes that a licensee for commercial fisheries

20 Labour Protection Bureau, Form, available online at http://protection.labour.go.th/index.php/2013-11-01-02-31-59

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 26
with a boat of thirty gross tonnages or more shall provide rest periods for crew members as
prescribed by the ministerial regulation on labour protection in fisheries work.

In practice, there is little or no enforcement by officials of hours of work, rest, annual leave and
paid sick leave for fishers. 21 There is still a debate among Government officials and
representatives of employers and workers as to what constitutes hours of rest and stand-by
hours in the fishing work. Fishers may have days off when back at shore and do not normally
receive payments for non-working days.

Gaps identified
The LPF allows the skipper of a vessel to require fishers to perform any hours of work necessary
in an emergency situation in accord with C. 188 but does not define “emergency” and this could
lead to a broader interpretation than that allowed by the Convention.

Recommendations
• Ensure that laws related to resting hours are coherent. Currently, the Ministerial
Regulation on Occupational Safety, Health, and Welfare System of Crews in Fisheries B.E.
2559 (2016) requires licensee for commercial fisheries for the boat with size of thirty
gross tonnages or more to provide resting period for crew members while the Ministerial
Regulation Concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014) applies to
all sea fishers.
• Provide uniform guidance on calculating rest hours. A discussion is required on what is
working hours, resting hours, stand-by hours, how to calculate and how to track hours.
• Provide uniform guidance to define the term “emergency situation”, namely for the
“immediate safety of the vessel, the persons on board or the catch, or for the purpose of
giving assistance to other boats or ships or persons in distress at sea.”
• Introduce measures on monitoring and enforcing provisions for annual leave and sick
leave for fishers.

3.4.2 Crew list (Article 15)

Existing implementing measures

21 Information provided by a civil society organization.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 27
Section 7 of the LPF requires an employer with ten employees or more to produce employee
registrations in Thai (including employee name, gender, nationality, date of birth, address,
position, rate, and benefits), and to keep them at the place of work to be inspected. The
employer shall also submit copies of the registrations to the Director General or a person
assigned by the Director General within 30 days as of the date when employees started working.
Employers shall keep the registration for at least two years as of the date of termination of
employment relationship of each employee. In the case where there is a change in the
registration, the employer shall amend it within 60 days as of the date of such a change. The
employer shall inform the Director General or a person assigned by the Director General of this
change.

Section 81 of the Royal Ordinance on Fisheries B.E. 2558 (2015) (ROF) requires “any person
wishing to use a commercial fishing vessel of a size prescribed by the Minister to engage in a
fishing operation to report every port-in and port-out operation to the competent officials of the
Port-In Port-Out Controlling Centres (PIPO Centre). The ROF’s subordinate legislation22 specifies
that the owners or vessel controllers of the following vessels have to report to the PIPO Centre;
- Vessels from 30 gross tonnage and
- Vessels from 10 gross tonnage which utilize trawl nets, surrounding nets and anchovy
purse seiner for commercial purpose.

Section 82 specifies further that such “owners of vessels or vessel controllers have to submit a
set of documents to the competent officials of PIPO Centre. The documents include vessel
registration, vessel use permit, the fishing license, details of number and a list of outgoing
seamen on board, seaman/sea book, evidence under Section 83 (to prove that the crew on
board are permitted to enter into the country and work in the Kingdom).

Gaps identified
The LPF only requires employers with 10 employees or more to produce and carry an employee
registration while the ROF and its subordinate legislation requires only some vessels (from 10
gross tonnage with destructive fishing method and 30 gross tonnage) to provide a crew list to
PIPO centre prior to departure and arrival of the vessel.

22 Section 2 of the Announcement of the Department of Fisheries on Rules and Procedures related to the Port-In/Port-Out Control of Commercial

Fishing vessels B.E. 2559 (2016)

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 28
Currently, only 30 gross tonnage vessels are required to complete PIPO reports.

In practice, PIPO centres are often located at a distance from the port or piers so inspection is
based on documents without seeing the vessels and crew.

Recommendations
Extend the obligation to have a crew list and to report to PIPO to smaller vessels. If the
Government of Thailand finds that it is not immediately possible to fulfill this requirement, it
could consider making use of the flexibility clause in Article 4 of C. 188.

3.4.3 Fisher's work agreement (Articles 16 - 20)

Existing implementing measures

Requirement of work agreement.
Although a general employment contract is not required to be in writing, Section 6 of the
Ministerial Regulation Concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014)
prescribes that an employer shall arrange to make written employment contracts in duplicate
with identical texts for employer and employee to hold, and available to be inspected by a
labour inspector. The law also requires the employment contract to be in accordance with a
form prescribed by the Director-General of the Department.

The Announcement of the Department of Labour Protection and Welfare Concerning Forms of
Employment Contract for Fisheries Workers 2014 issued the form Por Mor 1 as a model sea
fishery employment contract. The form includes:
- names and age of fishers
- place at which and date on which the agreement was concluded
- name and registration number of the vessel
- name of employer
- position
- definite or indefinite period of contract
- wages (payment and share, method of calculation)
- resting period
- welfare, provision of safety tools and equipment, and training for employees
- duties of employees
- employees’ right to contact government officials, labour coordination centre and family
Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 29
 - duty of employer to provide communication device
- requirement that the contract be made in Thai and native language of employees with
identical texts, with employer and employee to hold copies.

Other provisions required by Annex II of C. 188 (Fisher’s Work Agreement) are already23 or going
to be24 guaranteed in Thai law. The model contract does not contain a clause on a place of birth
of an employee but it requires information on domicile as regulated in a house registration
document or in certificate of residence in native country. The model contract for sea fishery
work is available in Thai, English, Burmese, Laotian, Khmer and Vietnamese.25

The employment contract is also governed by the Civil and Commercial Code and the Labour
Protection Act B.E. 2541 (1998).26

Additional measures
When a dispute related to a fisher’s work agreement arises, both Thai and migrant workers have
access to, including but not limited to, complaint mechanisms and the labour court.27 In practice,
however, migrant fishers in particular face challenges in using these mechanisms without
considerable assistance from a CSO.

Obligation of fishing vessel owner.

Under the LPF, “employers” (including a fishing vessel owner and skipper) have an obligation to
arrange two copies of written contracts and give one thereof to fishers for labor inspection.
Moreover, an employment contract is one of documents required to be submitted to PIPO

23 Amount of paid annual leave, health coverage and benefits and the fisher’s entitlement to repatriation.
24 Protection for fisher in the event of sickness, injury or death in connection with service and social security.
25 Labour Protection Bureau, Form, available online at http://protection.labour.go.th/index.php/2013-11-01-02-31-59
26 For example, Section 17 Whereas no definite period is specified in the contract of employment, an employer or an employee may terminate

the contract by giving advance notice in writing to the other party before or at the date a wage payment falls due, but advance notice of more

than three months is not required. In this respect the traineeship contract shall be deemed as contract with no definite period. Upon termination

of the contract of employment under paragraph two, the employer may pay wages, at the amount to be paid, up to the due time of termination

specified in the notice and dismiss the employee immediately.

27 Section 8 of the Act on the Establishment of and Procedure for Labour Court, B.E. 2522 (1979): “Labour court shall have jurisdiction over the

following matters:(1) disputes concerning the rights or duties under an employment agreement or under the terms concerning the state of

employment; (2) disputes concerning the rights or duties under the law relating to labour protection or the law relating to labour relations…”

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 30
centre by the owner (or “controller”) for vessels of 10 gross tonnage with certain equipment,
and all vessels of 30 gross tonnage and more.

Gaps identified
Current Thai law does not have contracting requirements for:
- procedures for ensuring that a fisher has an opportunity to review and seek advice on the
terms of the fisher's work agreement before it is concluded (Article 17 (a))
- having the fisher’s work agreement on board and available to the fisher and to other
concerned parties on request (Article 18)
- obligation of fishing vessel owner to have evidence of contractual or similar
arrangements when fishers are employed or engaged by someone other than the fishing
vessel owner (Article 20)

Recommendations
• Initiate a service to assist workers to understand employment contract and seek advice
on the terms of the fisher's work agreement before it is concluded. The Government of
Thailand could add this service to the ten migrant workers service centres established by
the Cabinet Resolution dated 26 July 2016.
• Amend the LPF to clearly require the fisher’s work agreement to be carried on board and
be available to the fisher and to other concerned parties on request
• Impose an obligation on fishing vessel owners to have evidence of contractual or similar
arrangements even when fishers are not employed or engaged by the fishing vessel
owner (i.e. has a contract with manning agent).
• Thailand is encouraged to include a requirement reflecting paragraph 12 of ILO
Recommendation 199 which stipulates that “at the end of each contract, a record of
service in regard to that contract should be made available to the fisher concerned, or
entered in the fisher's service book.” It would be up to the competent authority to decide
what other records could be kept.

3.4.4 Repatriation (Article 21)

Existing implementing measures

There are four different laws addressing repatriation of fishers.

Section 15 of the Ministerial Regulation Concerning Labour Protection in Sea Fishery Work B.E.
2557 (2014) (LPF) obliges employers to bring or pay for an expense to repatriate an employee
back to the place in four specific circumstances namely (1) the fishing boat sinks or becomes

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 31
totally unable to be used; (2) an employee is injured, ill, or dead resulting from work; (3) an
employer terminates an employment contract before its expiration or revises the conditions of
employment contract without an employee’s consent; (4) an employment contract expires
during a time when an employee works in a place other than the place where the contract was
made. If an employer did not comply and the competent authority has repatriated an employee
thereof, the competent authority is entitled to take recourse for the payment on repatriation
against an employer.28

Royal Ordinance on Fisheries B.E. 2558 (2015) (RoF)

In the case where the Thai Government has to repatriate a skipper, seaman, or passenger who
was stranded abroad due to a violation of a foreign state law by the fishing vessel, Section 54 of
the RoF requires the owner of such a Thai fishing vessel or the owner of a non-Thai fishing vessel
having a Thai master or a seaman or a passenger aboard, to reimburse the expenses within thirty
days from the date on which he/she receives a written notice from the Department of
Fisheries.29

Department of Consular Affairs (DoCA)

In the case when a fishing owner fails to repatriate fishers and fishers have asked for assistance,
the Department of Consular Affairs (DoCA) can repatriate Thai fishers in accordance with Section
12 of the Ministry of Finance Regulation on Advance Payment to Assist Thai people in Foreign
Country B.E. 2549 (2006). Fishers are required to sign a contract to borrow money from the
DoCA but, in practice, fishers do not normally pay this money back and the contract is not
enforced. As for migrant fishers, the DoCA will send a request for assistance to their home

28 Moreover, when an employee is left in other country due to work, Section 14 requires an employer to pay money to an employee at a rate of

not less than 50 percent of the minimum wage rate during the entire period of time that an employee is left abroad unless an employer agreed

to pay wage at higher rate than the minimum wage rate, the calculation of money thereof shall be based on the agreed wage rate instead of the

minimum wage rate. An employer is not required to pay such money if an employer has notified the competent authority in writing within 60

days since the date an employee has been left abroad and has expressed an intention to bring all employees who have been left abroad back to

the place where they were recruited and has paid for relevant transportation expense.
29 In the case where the owner of the fishing vessel fails to reimburse the expenses within the period prescribed pursuant to paragraph one, the

Department of Fisheries shall have the power to confiscate any such fishing vessel and have it sold by auction. After the sum of money to be

reimbursed is deducted together with interest at seven and a half percent per year payable as from the date on which the sum becomes due

until the payment is made using the sum received through any such auction, the remainder shall be returned to the owner of the vessel.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 32
country to be repatriated by his or her home country. DoCA has the right to be reimbursed by
the vessel owner with 15 percent interest per year as of the date that DoCA incurred expenses.

The Royal Ordinance on Importation of Aliens to work with employers in the Kingdom B.E. 2559
(2016) (ROIA) governs migrant fishers who enter Thailand via the Memorandum of
Understanding. Under the ROIA, employees may be brought to work by an employer or an agent.

Brought by employer. When an employer terminates the contract, an employee resigns or a

contract ends, the employer who brought an employee to work with him or her must repatriate
the employee within 7 days as of the last day of work or the end date of the contract (Section
28).

Brought by agent. When the contract is ended or an employee no longer works for an employer,
the employer has to inform the agent, and the agent is responsible for repatriating the employee
within 7 days as of the last day of work or the end date of the contract (Section 31).

If an employer or an agent does not do so, the Director General shall repatriate such an
employee back and deduct money from the employer’s or agent’s security as the case may be.

The Working of Alien Act B.E. 2551 (2008) established the Foreign Workers Repatriation Fund to
repatriate migrant workers. The fund requires employers to deduct a one-time fee of 1,000 baht
from Burmese, Lao, and Cambodian migrant workers’ salary and submit it to the fund.
Alternatively, the contribution can be made in up to four installments. Migrant workers can
claim the contribution back when they arrange to go back home by themselves. However, the
implementation of the fund was postponed.

Gaps identified
• The LPF fails to require vessel owners to repatriate fishers when 1) a fisher’s work
agreement expired or has been terminated for justified reasons by the fisher or by the
fishing vessel owners, and 2) a fisher is no longer able to carry out the duties required
under the work agreement or cannot be expected to carry them out in the specific
circumstances.
• Department of Consular Affairs Announcement No. 1/2559 on rules, procedures and
conditions to repatriate seaman when the vessel owner does not repatriate (under
Section 59 of the Maritime Labour Act B.E. 2558 (2015)) applies formally to seafarers and
not fishers.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 33
 • The Thai Government has no policy to assist non-Thai fishers from Thai-flagged vessels
who are stranded abroad.

Recommendations
• Amend the LPF to require employers to bring or pay for an expense to repatriate an
employee in circumstances where 1) a fisher’s work agreement expired or has been
terminated for justified reasons by the fisher or by the fishing vessel owners, and 2) a
fisher is no longer able to carry out the duties required under the work agreement or
cannot be expected to carry them out in the specific circumstances. The law shall also
prescribe the maximum duration of service periods on board following which a fisher is
entitled to repatriation, and the destinations to which fishers may be repatriated.
• Issue a DoCA Announcement to provide repatriation to fishers, whether Thai or migrant,
in the circumstances outlined under C.188 when a fishing vessel owner fails to do so. The
Announcement shall contain a clause stating that the DoCA could recover the cost from
the fishing vessel owner.

3.4.5 Recruitment and placement (Article 22)

Existing implementing measures

There are two laws related to recruitment and placement in Thailand. The Employment & Job
Seeker Protection Act (1985) (EJSP) applies exclusively to Thai nationals. The Royal Ordinance on
Importation of Aliens to Work with Employers in the Kingdom B.E. 2559 (2016) (ROIA) governs
recruitment and placement of migrant workers who come to Thailand via regular immigration
channels.

The EJSP established the Employment Office of the Department of Employment in the Ministry
of Labour, which has a duty to help people to find work without any charge. The Act focuses
exclusively on employment for Thai people, and especially on arrangements to send Thai
workers abroad. It regulates recruitment agencies for domestic employment and overseas
employment by requiring a person who provides this service to job seekers to have a license
(Sections 69 - 70). In terms of domestic employment, licensees may demand or receive any
money or property from a job seeker in a form of service charge or expense, but the rates
charged to job seekers are limited (Section 26), and licensees cannot demand or receive fees or
expenses before an employer offers employment and makes his/her first payment to the job
seeker (Section 27).

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 34
The ROIA applies to any undertakings to bring migrant workers to the Kingdom under
immigration law, including the Memoranda of Understanding between Thailand and other
countries, and immigration-related Government policy. Migrant workers can be brought to work
with employers by licensee or employers (Section 6). The law establishes a permit system where
a person who wishes to conduct business to bring migrant workers to work have to meet
standards (Section 10) and obtain a license (Section 9). Competent authorities have the power to
inspect the business (Section 38 - 39) and the license could be suspended or revoked under
circumstances listed under the law (Sections 40 - 41). It prohibits licensees from requesting or
receiving money or other properties from migrant workers and only allows it to request money
or other properties from employers at the rate specified by the Director General (Section 25).

In sum, both laws regulate private services providing recruitment and placement for workers
through standardized systems for licensing (and de-licensing) and regulating operations of
private recruitment and placement services.

Gaps identified
• ROIA prohibits from recruitment and placements services charging fees to migrant job
seekers, but EJSP does not prohibit the practice for recruitment or placement of Thai
workers.
• Lack of systematic enforcement and targeted legal measures to protect for all fishers
(Thai and migrant fishers recruited via MoU or non–MoU channels) from wage
withholding, debt bondage, and other abuses connected to indirect payment of
recruitment or placement fees.
• EJSP and ROF do not prohibit recruitment and placement services from using means,
mechanisms or lists intended to prevent or deter fishers from engaging for work.
• No obligation for the fishing vessel owner to be liable in the event that a private
employment agency defaults on its obligation to a fisher.

Recommendations
• Introduce legal measures and ensure enforcement in related law to eliminate direct and
indirect payment by migrant fishers of any recruitment or placement fees.
• Amend EJSP to prohibit licensees from requesting any fees or charges for recruitment or
placement.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 35
 • Amend EJSP and ROF to prohibit recruitment and placement services from using means,
mechanisms or lists intended to prevent or deter fishers from engaging for work.
• Impose obligation on the fishing vessel owner to be liable in the event that the private
employment agency defaults on its obligation to a fisher.

3.4.6 Payment of fishers (Articles 23 - 24)

Existing implementing measures

Ministerial Regulation Concerning Labour Protection in Sea Fishery Work B.E. 2557 (2014)
(Section 8) requires employers to prepare documents in Thai on payment of wages and work on
holidays, and to keep them at the workplace so that they can be inspected by a labour inspector.
The detail of such documents shall include: 1) name and last name; 2) position, and 3) rate and
amount of wages and holiday pay. When a payment is made, employers shall arrange to have
employees sign such documents as evidence. In the case where an employer uses a bank
transfer of wages to an employee, the transfer receipt is the document related to payment.
Employers shall keep the documents for not less than two years from the date of payment.

Section 10 requires the employer to pay wages (and holiday pay) correctly according to the
following conditions:
(1) Where wages are calculated on a monthly, daily, or hourly basis (or on the basis of
other time periods not exceeding one month), wages shall be paid not less often than
once a month unless otherwise agreed in favour of an employee.
(2) Shared profits, in which an employer has agreed to make payments according to the
value of the aquatic animals being caught, shall be paid according to a mutually-
agreed payment schedule, but the payment frequency shall not less than once every
3 months.
(3) Holiday pay shall be made not less frequently than once a month.

Section 11 require an employer who fails to pay wages (and holiday pay and share of the catch, if
applicable) according to the law, an employer shall pay interest arisen during default period to
an employee at the rate of 15 percent per year.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 36
An employer who intentionally defaults (without sufficient reasons) on payment of wages under
paragraph 1 above within seven days of the due date, shall pay an additional 15 percent of the
unpaid amount to employees every seven days.30

A representative of a CSO informed during tripartite consultations that, in practice, most fishers
do not get paid every month.

The representative of employers claimed that fishers often ask for advance payments and
disappear while a representative of a CSO opined it may be a situation of debt bondage where
an employer paid a recruiter to hire a fisher and the employer withholds fishers’ pay to retain
workers and seek repayment of fees to the employer.

Gaps identified
• Timely and accurate payment of wages and other compensation to fishers is not
enforced consistently by the competent authorities. Workplace payment records and
records provided to fishers can be incomplete or lack sufficiently detail. During the
inspection on vessels, there is also a challenge to verify if the records on documents are
true. It is not clear if the requirement to keep records at the workplace would mean
keeping them at an office and/or vessel.
• No established system exists to allow fishers or employers to transmit all or part of their
payments received, including advances, to their families at no cost. Transmission of
payments by informal brokers can cost fishers or employers up to 25 percent.
• It is a common practice that fishers ask for advance payment or partial payment of a later
lump-sum payment before the departure but the Labour Protection Act prohibits
employers from deducting employees’ salaries in order to avoid debt bondage.

Recommendations
• Active enforcement of existing laws on regular and accurate payment of wages and other
compensation to fishers.
• Extend workplace definition for payment records to onshore office.

30 If an employer is ready to pay for the amount mentioned in paragraph 1 and paragraph 2 and has deposited such money with a labour

inspector working in an area where an employment contract is made or where an employer has domiciled in order to be paid to an employee,

the payment of interest or additional money thereof shall be extinguished from the date of money deposited thereof.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 37
 • Employers and Government establish systems allowing payments to be transmitted to
fishers’ families at no cost. This system may reduce the need of fishers to ask for advance
payments.
• Include a provision on regulation, calculation, and tracking of advance payments to
fishers in the model contract to regulate this common practice.

3.5 Accommodation and food

3.5.1 Accommodation and food (Articles 25 - 28)

Existing implementing measures

For fishers work and living on fishing boats, Section 16 of the LPF obliges employers to provide
adequate hygienic food and drinking water, toilet, and medical supplies and medicine for basic
first aid.

Section 37 of the ROF requires a commercial fishing licensee to provide an occupational safety
and hygiene system, as well as provide proper working conditions for seamen as prescribed by
the Ministerial Regulation. The Ministerial Regulation on Occupational Safety, Health, and
Welfare System of Crews in Fisheries B.E. 2559 (2016) (OSHW) prescribes occupational safety and
hygiene system standards for vessels of 30 – 60 gross tonnages, and higher standards for vessels
more than 60 gross tonnage.

For vessels of 30 gross tonnage and more, licensees are required to provide quality, adequate,
and hygienic food and drinking water appropriate to the work and duration of the fishing
operations (Section 6). The licensees also have to provide a suitable rest area on fishing vessels.
For vessels of 60 g.t and higher, Sections 13 - 14 specify that licensees shall provide areas for
resting, dining, recreation appropriate for member of crews and the duration of their fishing
operations, and shall provide at least one toilet of at least one square metre in size.

A representative of employer associations opined that it is impossible to arrange a toilet in a

fishing vessel but an engineer from the Marine Department confirmed that it is possible by
converting an area on the vessel to do so. Employer associations expressed challenges to
implement Annex III on new vessels.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 38
Gaps identified
• OSHW provisions related to accommodation only apply to fishing vessels of 30 gross
tonnage and higher.
• OSHW has no provisions that specify the size and quality of accommodation, nor
provisions in C. 188 Art. 29, including approval of plans, maintenance, ventilation,
heating, cooling and lighting, noise and vibration, sleeping rooms, toilets and washing
facilities, hot and cold water, and responding to complaints.
• Toilets are required only on vessels of 60 gross tonnage higher.
• LPF and OSHW require employers/licensees to provide food and water but do not specify
that they will be provided at no cost to fishers (unless provided for in a fisher’s work
agreement).

Recommendations
• Apply accommodation standards to fishing vessels built after ratification of C. 188.
However, the Government, following consultation, can apply them to existing vessels. (It
should be also noted that the requirements for vessels under 24 metres are not as
prescriptive as for the larger vessels and that the Government, following consultation,
has flexibility in setting and applying standards).
• Review IMO/FAO/ILO guidance on the design of model vessels that are appropriate in
terms of labour standards, fishing operations, and vessel safety.
• Arrange a consultation to discuss adoption of laws and regulation which are substantially
equivalent to the provisions set out in Annex III (Accommodations), except for provisions
related to food and water.

3.6 Medical care, health protection and social security

3.6.1 Medical care (Articles 29 - 30)

Existing implementing measures

OSHW requires that licensees of vessels of 30 gross tonnages or more shall make available first-
aid medicines and medical suppliers appropriate for work on fishing boat, crew size, and during
of fishing operations (Section 9). Licensees of vessels of 60 gross tonnages or more shall have at
least one first-aider who had passed the first-aid course from an institute or agency accredited
by governmental agencies in charge of service (Section 15).

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 39
Skippers of vessels of 30 gross tonnages or more shall undertake steps to ensure that any sick
crew members receive first-aid treatment, and, in cases of severe or serious sickness, must refer
the patient for treatment to a hospital immediately (Section 10).

FVI requires licensees of a vessels of 10 gross tonnages or more to have a radio kit. (Section B)

Gaps identified
• FVI and OSHW provisions are not applied to all types of fishing boats.
• No provisions on medical care take into account the number of fishers, the area of
operation, or the length of the voyage in order to determine medical equipment and
supplies as well as number first aiders.
• No provisions require vessel owner or skipper to provide instruction or other information
on medical equipment and supplies.
• No provisions for vessels of 24 metres or more for:
- responsible agencies to prescribe the medical equipment and supplies to be carried
out on board
- Maintenance and inspection of medical equipment
- Medical guide (book)
- Access to a system of medical advice to vessels at sea by radio or satellite
communication, including specialist advice, which shall be available at all times
- A list of radio station or satellite station which can provide medical assistance shall be
on board
- Free medical care while fisher is on board or landed in a foreign port

Recommendations
• Extend the existing medical care provisions to cover all vessels
• Set appropriate equipment and supplies standards linked to the number of fishers, the
area of operation, and the length of the voyage
• Require a person on board trained in first aid.
• Amend OSWH to require vessel owners or skippers to provide instruction or other
information on medical equipment and supplies.
• Prescribe requirements for vessels 24 metres or more as noted above

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 40
3.6.2 Occupational safety and health and accident prevention (Article 31-33)

Existing implementing measures

LPF requires employers engaged in sea fishing work to train crew members on working
conditions, tool usage, health and hygiene, vessel living conditions, and safety equipment before
any work performances (Section 17).

OSHW requires vessel controllers for vessels of 30 gross tonnage or more to provide, prior to the
performance of duties, training to the crew on: 1) Usage of tools, equipment and engines of the
boat; 2) Fishing gears and equipment and regulations on fishing in accordance with the duties of
the crew; 3) Occupational safety for fishing crews (Section 4). Controllers must maintain records
of training.

OSHW also requires licensees to provide equipment and tools on board, life buoys, and arrange
for hiring of seaman for placement on fishing vessels in accordance with the Navigation in Thai
Waters Act B.E. 2456 (1913) (NTW). Also under NTW, FVI sets equipment requirements based on
gross tonnage of vessels (less than 10 g.t., 10 - 30 g.t., 30 – 60 g.t., and over 60 g.t.)31 and
specifies the certifications required for controllers and engineers. For example, licensees of
vessels of 30 gross tonnage or more shall provide personal safety equipment for seamen
appropriate to their duties and types of fishing (Section 5 of OSHW).

Occupational Safety, Health and Environment Act B.E. 2554 (2011) (OSH Act) is said by the
Department of Labour Protection and Welfare to cover fishers and fishing vessels but there is
still no clear guideline to implement the law on fishers and it is still in doubt on whether applying
this Act to fishers who have specific working conditions on fishing vessels would be suitable.
Even if the Government agrees to prescribe further details on safety specifically for fishers, there
is no possibility to issue a subordinate legislation under the OSH Act to regulate occupational
health and safety for a specific group of workers. Unlike the Labour Protection Act, section 22
thereof allows an issuance of a ministerial regulation to provide labor protection in sea fishery
work.32

31 Examples of equipment includes, radio, navigation light, rope, anchor, plumb-line, pyrotechnics, fire extinguisher, compass, clock, binocular,

map, GPS, echosounder, liferaft, life jacket, oil filter equipment.

32 The ILO “Safety and health training manual for the commercial fishing industry in Thailand“ is a useful reference

http://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/documents/publication/wcms_329102.pdf

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 41
Gaps identified
• No provisions (beyond training requirements) for prevention of occupational accidents,
occupational diseases and work-related risks on board fishing vessels, including risk
evaluation and management, and on-board instruction of fishers (Article 31.a)
• No provisions specifying the safety and health obligations of fishing vessel owners, fishers
and others concerned (Article 31.c)
• No provisions for reporting and investigation of accidents on board Thai-flagged vessels
(Article 31.d)
• No provisions for the setting-up of joint committees on occupational safety and health or
other appropriate bodies (Article 31.e) nor risk evaluation with fishers (Article 33)
• Inadequate provisions for safety procedures, guidance and training materials, protective
equipment, and Government-approved basic safety training (Article 32)

Recommendations
Amend LPF and OSHW to:
• Cover all fishing vessels and not only those of 30 gross tonnage and more.
• Enforce existing requirement that fishers receive safety training.
• Require reporting and investigation of accidents on board fishing vessels
• Require the setting-up of joint committees on occupational safety and health or, after
consultation, of other appropriate bodies
• Clarify requirements for on-board safety procedures, guidance and training materials,
protective equipment, and Government-approved basic safety training (Article 32)
• Require risk assessment and evaluation with participation of fisher workers or their
representatives

3.6.3 Social security (Articles 34 - 37) and Protection in the case of work-related sickness injury
or death (Articles 38 - 39)

Existing implementing measures

Currently, the Social Security Act B.E. 2533 (1990) (SSA) provides protection for employees in
agriculture, fishing, forestry and husbandry businesses which use employees all year round, but
it still excludes from its application those which do not use such workers all year round and there

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 42
is no other type of work involved.33 Hence such employees are not required to register as
insured persons under Section 33 of the SSA. It should be however noted that there is no clear
instruction on how to determine which fishing businesses do not use employees all year round.
(E.g. When the Government closes the Gulf of Thailand to fishing for a couple of months, does it
mean that fishing businesses do not use employees all year round?) Section 33 of the SSA
establishes a contributory scheme (government, employer, employee) providing seven types of
benefits for insured persons (sickness or injury, maternity, disability, death, child allowance, old
age, and unemployment).

Section 44 of the Workmen Compensation Act B.E. 2537 (1994) (WCA) and its subordinate
legislation obliges an employer with one employee or more in any area of Thailand to contribute
to the workmen compensation fund.34 There is an exemption for some groups of employers, i.e.
employers in agriculture, fishing, forestry and husbandry businesses which do not use employees
all year round and there is no other type of work involved, employers who are not juristic person
and whose work is not related to business, and employers who are hawkers.

Hence, there are two types of protection under the WCA:

1) Payment of employment injury benefit from the fund: If employees of employers who are
obliged to register and contribute to the workmen compensation fund have employment-related
sickness or injury, they are entitled to receive compensation from the fund. As for migrant
workers, they must be regular migrant workers to be eligible to the payment from this fund; and

2) Payment of employment injury benefit directly by employers: Employees of employers in

fishing which do not use employees all year round and there is no other type of work involved,
who have employment-related sickness or injury, will have their employers pay those employees
compensation out of their pocket. If employers fail to provide payment, the Social Security Office
(SSO) could issue an order obliging employers to comply. Employees in this group could be Thai,
regular or irregular migrant workers.

33 See Section 4(6) of the Social Security Act B. E. 2533.which lists workers excluded from its application.
34 The Announcement of Ministry of Labour and Welfare on types and size of business and area where employers must make contribution to the

fund B.E. 2537 and the amendment (No.2) B.E. 2545

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 43
Without access to SSA and the workmen compensation fund, Thai fishers who work in fishing
businesses that do not use employees all year round and do not involve in other kind of work
could rely on universal health care which provide medical care for Thai citizens, and they may
voluntarily register themselves under Section 40 of the SSA which provides income replacement
during sickness and disability, funeral benefits, and a lump sum payment for old age benefit.35
Migrant fishers registered at the One-Stop Service Centres are required to pay for a health
check-up and health insurance from the Ministry of Public Health at 1,600 baht.

In sum, both Thai and migrant fishers (who work in businesses which do not use employees all
year round and there is no other type of work involved) are hence at least entitled to medical
care benefits and receive compensation from employers when face employment injury. Only
Thai fishers may apply to be an insured person under Section 40.

The Ministry of Labour is drafting a “Draft Royal Decree prescribing businesses or employees to
which the Social Security Act does not apply” designed to oblige employers of 20 fishers or more
to register them under the SSA. Similarly, the committee of the WCA is considering a “Draft
Announcement of Ministry of Labour and Welfare on types and size of business and area where
employers must make contribution to the fund” which would oblige employers in agriculture
and fisheries who hire 20 employees or more to register their employees under the WCA. The
draft passed the Draft Law Committee of the Ministry of Labour and awaits consideration and
approval by the Cabinet.

A representative of an employer association expressed concern that vessel owners do not have
enough resources to pay contributions for fishers every month. A representative from a CSO
proposed that there be consideration of Protection and Indemnity Insurance (P&I) for fishers.

Gaps identified
• Fishers who work in fishing businesses that do not use employees all year round and are
not involved in other kinds of work still do not have access to the Social Security and the
Workmen Compensation funds in the same way as other employees.
• SSA funding or reimbursement for fishers for medical care outside of Thailand is not clear

35 There is no clear rule in determining whether fishers work in fishing businesses that use employees all year round and have other kind of work.

This determination could result in providing access of such fishers to social security system.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 44
 • Even after changes to SSA and WCA, migrant fishers may face the same challenges as
other migrant workers in accessing to social security:
- Passports. Migrant workers registered as ‘pink card’ holders who are waiting
national verification (this includes the vast majority of fishers) are barred from
access to social protection without a passport and work visa
- Unemployment. It is not possible for migrant workers to claim unemployment
benefits since they are required to find a new job within 15 days otherwise they
will be deported
- Death. If migrant workers die, survivors (who may not have ID cards or passports)
have to travel to Thailand to make a claim to the SSO in person and provide
necessary documents (in Thai)
- Old age. Section 77 bis (3) of the SSA allows insured persons who do not have Thai
nationality to take a lump sum payment for old age benefits after the cessation of
being an insured person in the case where the persons do not wish to stay on in
Thailand. The detail on the rate and method of payment was further elaborated
under the Royal Decree on a lump sum payment for old age benefits for insured
persons who do not have Thai nationality B.E. 2560. The Decree however limits
the right to receive this payment to persons who have nationality of a country,
which concluded a social security agreement on old age with Thailand. Currently,
Thailand is negotiating social security agreements with Cambodia, Lao PDR,
Myanmar, Vietnam, India, the Republic of Korea and Japan but it has not
concluded one. Hence, insured persons who are migrant workers could not
request for this payment yet.
- Payment abroad. There is no arrangement for continuous social protection
payment abroad to workers, forcing migrant workers or survivors to accept lump
sum payment. Moreover, the SSO provides payment in a form of cheque which
could not be deposited to banks in certain countries, i.e. Myanmar has no cheque
clearing system.

Recommendations
• Finalize revisions to the Royal Decree and the Announcement to include some fishers
under the SSA and WCA, and progressively extend such subordinate legislation to cover
all fishers who are ordinarily resident in Thailand
• Finalize social security agreements with the main countries of origin (Myanmar,
Cambodia, and Lao PDR) or provide other arrangement to facilitate the portability of

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 45
 social security and workmen compensation schemes once launched. The SSA and WCA
have already endorsed the principle of equality of treatment irrespective of nationality
but it still has to ensure that the insured persons could receive benefits when they go
back home or survivors could receive benefits without travelling to Thailand. It shall also
work with the main countries of origin to make both social security systems take into
account the periods contributed by migrant workers to a social security system i.e. if a
migrant worker contributed to the social security system in Thailand for five years and
returned to Myanmar to work in a factory, the social security system in Myanmar should
take into account this five years period and add it up to periods contributed in Myanmar
so that the worker could be eligible to some long term benefits.

3.6.4 Compliance and enforcement (Articles 40 - 44)

Existing implementing measures

Thailand does not have a single system to implement laws related to C. 188 but each relevant
law has its own enforcement mechanisms and different competent authority to enforce the law.

3.6.4.1 Ministry of Labour

a) Labour Protection Act (LPA) and the Ministerial Regulation Concerning Labour Protection in
Sea Fishery Work B.E. 2557 (2014) (LPF)

There are at least five channels to implement provisions under the LPF:

i) Complaint mechanism
Section 3 of the LPF prescribes that Section 123 and 125 of the LPA shall be applied to
employees (employed fishers). An employee may submit a complaint related to
monetary benefits to a labour inspector to investigate fact. The labour inspector can
order employers to pay the employee within 30 days or, in the case the inspector opines
that the employee does not have such a right, inform the employee about the order. An
employer or employee who is not satisfied with the order can bring the case to labour
court within 30 days as of the date of the receipt of order. If the employer does not
comply with order, the employer may be prosecuted (criminal offence) and the
employee may bring the order to labour court for enforcement. When the employer

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 46
 complies with the order of inspector, court decision or order, criminal proceeding against
employers will be ceased.

ii) Labour Inspection

Labour inspectors may conduct inspections according to the plan or according to
complaints from relevant parties. A labour inspector has authority according to Section
139 (3) of the Labour Protection Act to order employers to comply with the law within
certain time. Employers may appeal the order to the Director General of the Labour
Protection and Welfare Department or assigned person according to Section 141. Failure
to comply the order will lead to criminal proceeding.

The Minister of Labour issued the Order No. 323/2557 dated 21 November B.E. 2557
(2014) to appoint officials to be labour inspectors. The officials include some civil
servants within the Ministry of Labour, Governors, vice governors and sheriff in all
provinces, police holding certain ranks, navy personnel holding certain ranks to be labour
inspector on the sea, certain civil servants in the Department of Fisheries, civil servants in
the Department of Special Investigation, etc.

The appointed labour inspectors have authority according to Section 139 (1) and (2) of
the LPA. The authority includes the power to 1) enter into a workplace or office to
inspect working conditions, conduct interview, make copies of documents related to
employment, payment of wages, overtime, registration of employees, collect samples for
investigation on occupational health and safety and other acts, in order to receive facts
necessary to implement the LPA; 2) inquire or call employers, employees or other
relevant persons to inform facts and submit subjects or related documents.

In addition, the LPF obliges the employer to bring employees to present themselves
before a labour inspector once a year after the date of contract in paragraph 1. The
Ministry of Labour has also prepared a Por Mor 4 form for employers to provide
employment information on their fishers. The form emphasizes the penalties for failure
to comply with Section 144 of the Labour Protection Act B.E. 2541 (1998).36

iii) Labour court

36 http://protection.labour.go.th/index.php/2013-11-01-02-31-59

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 47
 When an employer does not comply with laws related to right and duty, the employee
may file a case against the employer, or may assign a worker association or an official to
file a case instead. Employees do not have to pay for the court fee. (Section 33, 36 and 27
of the Act on the Establishment of and Procedure for Labour Court, B.E. 2522 (1979))

iv) Criminal Court

Failure to comply with the LPF is a violation of Section 22 and employers will face 6
months imprisonment or fines up to 100,000 baht, or both (Section 144 paragraph 1 of
the Labour Protection Act). The Ministry of Labour can file a claim to investigation officer
to pursue criminal case with employers. If such an act causes direct damages or special
damages, employees can be an injured person and file a claim to investigation officer or
file a case against employer.

v) Other channels
Employees can contact the Department of Labour Protection and Welfare (DLPW) via
phone, email, mail, reach out to Government office or call the call centre (1546) which
has translators. There are however no statistics provided on use of such services.

For the cases related to fishers stranded abroad in the past, a labour attaché or the Department
of Consular Affairs contacted DLPW. However, there is no internal coordination within the
Ministry of Labour. For example, a case involving an explosion of a vessel injured and stranded
fishers was received by DLWP but not referred of shared with the Social Security office.

b) Immigration Act B.E. 2522 (1979)

The Director General, Registrar and Competent Authority has power according to Section 48 - 50
of the Act. The Ministry of Labour Order No. 134/2555 appointed several officials to be
competent authorities under the Act including certain civil servants in the Department of
Employment, governor of provinces, military, navy and police, and labour.

3.6.4.2 Department of Fisheries under the Ministry of Agriculture and Operatives

The Department of Fisheries has duties to manage, control and regulate fishing and usage or
having ownership of fishing equipment to ensure that they are in compliance with the Royal

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 48
Ordinance on Fisheries B.E. 2558 (2015). This includes enforcing regulations on the type of gear
and fishing method.

a) Royal Ordinance on Fisheries B.E. 2558 (2015)

Ministerial Regulation on Occupational Safety, Health, and Welfare System of Crews in Fisheries
B.E. 2559 (2016) (OSHW) issued under the Royal Ordinance on Fisheries B.E. 2558 (2015)
contains some provisions that reflect C. 188 especially on safety and welfare of fishers. To
implement such provisions, relevant provisions are described below.

The Act prescribes its broad jurisdiction in enforcing the law as outlined in Section 8 that:

“[A]ny wrongdoing pursuant to this Royal Ordinance or the laws of a coastal state or in
accordance with criteria or measures based on relevant international laws, or the rules or
measures of relevant international organisations related to fisheries conservation and
management, whether being committed in Thai waters or outside Thai waters, and using
a Thai fishing vessel, a non-Thai fishing vessel, or a stateless vessel, shall be regarded as a
wrongdoing within the Kingdom, and shall be subject to a sanction prescribed in this Royal
Ordinance. In this connection, Thai courts shall have the power to try and adjudicate any
such case, and competent officials, inquiry officials and public prosecutors shall have the
power to undertake relevant legal proceedings.

If any such offence occurs outside Thai waters and does not involve a Thai fishing vessel
or a Thai national, proceedings pursuant to the provision under paragraph one shall be
implemented after such authorities have been notified thereof by a foreign state in which
any such wrongdoing has occurred or by a relevant international organisations related to
any such wrongdoing. ”

To enforce ROF, the competent authorities37 have power in accordance with:

37 The related Orders which appoint competent authorities are 1) Order of the Ministry of Agriculture and Operatives No. 1194/2558 on

appointment of competent authorities according to the Royal Ordinance on Fisheries B.E. 2558 (2015) for the Department of Fisheries and 2)

Order of the Ministry of Agriculture and Operatives No. 507/2559 on appointment of competent authorities according to the Royal Ordinance on

Fisheries B.E. 2558 (2015) for other agencies.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 49
 • Section 102 to conduct inspections, summon individuals, hold and search vessels, and
more38
• Section 104 and subordinate legislation39 to board and inspect fishing vessels found to be
undertaking fishing in violation of the law outside Thai waters
• Section 105 for actions by the competent authorities when there is credible evidence
that a fishing vessel has committed an offence; for example, officials may record data,
produce reports, order the confiscation of fishing gear, aquatic animals or aquatic animal
products, or order the detention of the fishing vessel.
• Section 11140 for authorities to suspend or revoke licenses in cases where licensees
violate the ROF. In the case of severe infringements under section 114, the Director-

38 Section 102. When performing duties pursuant to this Royal Ordinance, the competent official shall have the following powers: (1) issue a

letter of summons to a licensee, company director, manager, person authorized to exercise managerial functions or the licensee’s employee

concerned, to give a statement or supply relevant documents or evidence for the deliberation of matters pursuant to this Royal Ordinance; (2)

enter enterprise premises or place related to the functioning of the licensee’s enterprise or place related to the importation, exportation, transit,

sale, production or processing of aquatic animals or aquatic animal products during working hours in order to exercise inspection and control to

ensure compliance with this Royal Ordinance; (3) enter enterprise premises or place related to the functioning of enterprises under control in

accordance with Section 76 during their working hours in order to exercise inspection and control to ensure compliance with this Royal

Ordinance; (4) control a fishing vessel, stop a fishing vessel or a fishing or transshipment operation, or order a fishing vessel master to berth the

fishing vessel at a port, or to embark a fishing vessel, or enter any fishing ground in order to exercise inspection and control to ensure compliance

with this Royal Ordinance; where there is reasonable cause for suspicion that an offence under this Royal Ordinance has been committed; (5)

conduct a search pursuant to the Criminal Procedure Code between sunrise and sunset or during the working hours where there is reasonable

cause for suspicion that an offence under this Royal Ordinance has been committed; (6) seize or attach any document or evidence related to the

commission of an offence under this Royal Ordinance for the purposes of an investigation or legal proceedings; (7) collect specimens of aquatic

animals or aquatic animal products or any matter for inspection or analysis in order to exercise inspection and control to ensure compliance with

this Royal Ordinance; (8) seize or attaching aquatic animals or aquatic animal products where there is reasonable cause for suspicion that they

are aquatic animals or aquatic animal products the possession of which is subject to prohibition pursuant to Section 64 or Section 65;(9) seize or

attach drugs, chemicals or any other hazardous substance where there is reasonable cause for suspicion that that they are drugs, chemicals or

any other hazardous substance used or to be used in aquaculture in violation of the proscription(s) pursuant to Section 78(4).
39 Announcement of the Ministry of Agriculture and Cooperatives on procedures of competent authority to board fishing vessel that is stateless

or commit fishing illegally outside Thai waters B.E. 2559

40 Section 111. If any licensee or permit holder violates or fails to comply with this Royal Ordinance, Ministerial Regulations, Notifications or

Directives issued pursuant to the provisions in this Royal Ordinance or the conditions specified in the license or permit, the official authorized to

issue any such license or permit shall have the power to issue an order that any such license be suspended or any such permission be ceased over

a period of time not exceeding ninety days. In a case in which a licensee or permit holder under Section 60, Section 62, Section 63 and Section 79

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 50
 General shall have the power to issue the orders under Section 11341against any person
engaging in a fishing operation.

In implementing provisions under the ROF, the Department of Fisheries has the main
responsibility with support from the Maritime Enforcement Coordination Centre (MECC). The
Department of Fisheries has jurisdiction covering 200 nm although the capacity/range of its
vessels may not reach that far. The Navy shall assist in implementing the Act with the support
from MECC. It established 18 Prevention and Suppression Sea Fishery Centres in 22 provinces
which are equipped with 349 officials and 112 vessels for inspection. It receives information and
analysis on potential violations from the Port-In/Port-Out Controlling Centre, Vessel Monitoring
System (VMS) and exchange of information among relevant agencies. The topic of inspection
includes issues about
- fishing vessels (registration, license, certificates of skipper/engineer, VMS)
- fishing (license, equipment, area, logbook)
- labour (employment related documents and work permit)

The Department of Fisheries has a system of monitoring, control and surveillance which includes
the Port-In/Port-Out Controlling Centres, the Vessel Monitoring System (VMS), Fishing Logbook,
and Marine Catch Purchasing Document (MCPD), and authority to order the vessel back to port.
The details are as follows.

Port-In/Port-Out Controlling Centres

re-commits a violation of rules or conditions pursuant to paragraph one, the official authorized to issue any such license or permit shall have the

power to issue an order that any such license or permission be revoked.

41 Section 113. The Director-General shall have the power to issue the following orders against any person engaging in a fishing operation which

constitutes a serious infringement: (1) seizure of the aquatic animals and aquatic animal products obtained from any such fishing operation or

seizure of fishing gear; (2) prohibition of any fishing activity until full compliance is achieved; (3) suspension of license for a period not exceeding

ninety days each time; in this regard, an order may also be issued to prohibit the use of any such fishing vessel until the license suspension period

expires; (4) revocation of license and publicly listing the fishing vessel as a vessel used in IUU fishing; (5) detention of any such fishing vessel or

demanding that a security be deposited where such infringing fishing vessel is a non-Thai fishing vessel. When seizing aquatic animals or aquatic

animal products pursuant to (1), the Director-General may order the owner or master of the vessel to take care of and store the aquatic animals

and aquatic animal products on board the vessel in the same conditions. When issuing an order pursuant to paragraph one, the Director-

General shall take into account the severity of the infringement, recidivism and the prevention of recidivism.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 51
Any person wishing to use a commercial fishing vessel to engage in a fishing operation has duties
under section 81(3) and subordinate legislation42 to report every port-in and port-out operation
to the Port-In/Port-Out Control Centre. The fishing vessel owner or the commercial fishing vessel
controller must submit documents required under Section 82 and subordinate legislation43 to
officials at PIPO Centre. Any person wishing to use a fishing vessel registered as a carrier for the
transshipment of aquatic animals or as a vessel for the storage of aquatic animals to transship
aquatic animals must also report to PIPO according to section 88 and subordinate legislation.44

Section 82. Prior to proceeding with the port-out procedure pursuant to Section 81, the
owner or the master of a fishing vessel shall submit documents related to vessel
registration, the vessel use permit, the fishing license, details of the number and a list of
outgoing seamen on board, evidence of authorization, license and permit under Section
83, as well as evidence related to the provision of appropriate systems for ensuring
occupational safety, hygiene and wellbeing of seamen as prescribed in the Ministerial
Regulation to the competent official at the Port-In/Port-Out Controlling Centre in
accordance with the rules and procedures prescribed by the Director-General.

In the case where the owner or the master of a fishing vessel fails to submit the
documents and evidence pursuant to paragraph one, or the provision of a system for
ensuring occupational safety, hygiene and wellbeing of seamen does not comply with the
requirements stated in the Ministerial Regulation, the competent official shall order the
detention of the fishing vessel at the fishing port or order the return of the fishing vessel
to the fishing port.”

There is a manual for controlling PIPO of fishing vessel which helps officials undertake the tasks
efficiently. It explains objective, duties, procedures and steps for implementation of officials.
There are forms MCS 003/001, 003/002 for PIPO, MS 003/003 for vessel inspection, fishing
equipment, safety on vessel and fishers. Officials will insert data in fishing info system and

42 Announcement of the Department of Fisheries on prescribing rules and procedures related to reporting port-in and port-out operation of

commercial fishing vessel B.E. 2559

43 Announcement of the Department of Fisheries on prescribing rules and procedures to submit documents and evidence to competent

authorities at Port-In/Port-Out Controlling Centres B.E. 2559

44 Announcement of the Department of Fisheries on prescribing rules and procedures related to reporting port-in and port-out operation of

carrier for the transshipment of aquatic animals or for the storage of aquatic animals B.E. 2560

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 52
inform the result of inspection to related agencies i.e. VMS Centre, Maritime Enforcement
Coordination Centre.

Vessel Monitoring System (VMS)

All commercial fishing vessels from 30 gross tonnage must install VMS which will locates vessels
and alert officials when there are suspicious causes. VMS Centre is an agency that monitor
fishing vessel by following location via VMS system.

Section 81. Any person wishing to use a commercial fishing vessel of a size prescribed by
the Minister to engage in a fishing operation must undertake the following actions:
(1( having installed a fishing vessel monitoring system and maintained the functionality
thereof at all times in accordance with the rules and procedures prescribed by the
Director-General…”45

Moreover, any person wishing to use a fishing vessel registered as a carrier for the
transshipment of aquatic animals or as a vessel for the storage of aquatic animals to transship
aquatic animals must install a fishing vessel monitoring system and maintained the functionality
thereof at all times according to section 88 and subordinate legislation.46

Authority to order the vessel back to port according to section 81 (5) and subordinate
legislation.47

45 Announcement of the Department of Fisheries on prescribing rules and procedures to install and maintain the functionality of a fishing vessel

monitoring system on commercial fishing vessel at all times B.E.2558 and its amendments No. 2 and 3 B.E. 2559 and No. 4 B.E. 2560,

Announcement of the Department of Fisheries on prescribing rules and procedures to install and maintain the functionality of a fishing vessel

monitoring system on fishing vessel operating outside Thai waters at all times B.E.2558
46 Announcement of the Department of Fisheries on prescribing rules and procedures to install and maintain the functionality of a fishing vessel

monitoring system on carrier for the transshipment of aquatic animals or for the storage of aquatic animals at all times B.E.2558 and its

amendments No. 2 B.E. 2559 and No. 3 B.E. 2560, Announcement of the Department of Fisheries on prescribing rules and procedures to install

and maintain the functionality of a fishing vessel monitoring system on carrier for the transshipment of aquatic animals or for the storage of

aquatic animals operating outside Thai waters at all times B.E.2558.

47 Announcement of the Department of Fisheries on rules and duration for commercial fishing vessel to return to port B.E. 2558 and its

amendment No. 2 B.E. 2558 and Announcement of the Department of Fisheries on rules and duration for commercial fishing vessel to return to

port B.E. 2560.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 53
Collection and records of fishing or transshipment data by observers
Section 50 requires a holder of a license to engage in fishing outside Thai waters to have an
observer stationed on board the fishing vessel in accordance with the rules prescribed by the
coastal state or the international organization having jurisdiction over the intended area of
fishing operation, or as prescribed by the Director-General.

An observer shall perform the following duties:

(1) Observe the catching of aquatic animals, the selecting and processing thereof, as well as
other activities concerned therewith, and record data found in the observations;
(2) Compile and record biological information and collect specimen of the aquatic animals
caught and any other data useful for the purposes of traceability;
(3) Prepare a summary report of actions taken pursuant to (1) and (2), to be submitted to the
competent official upon berthing of the fishing vessel at a fishing port or when the observer
returns to the coast in accordance with the procedures and timeframe prescribed by the
Director-General.

3.6.4.3 Marine Department under the Ministry of Transport

a) Thai vessel Act B.E. 2481 (1938)

The Act requires that the owner of a vessel with an engine or a weight of six gross tonnage or
more is required to register their vessel with the Marine Department.

b) Navigation in Thai Waters Act B.E. 2456 (1913)

Fishing vessel owner must obtain a certification of inspection from the competent authorities to
be able to use the vessel (Section 163 of NTW and FVI).

3.6.4.4 Royal Thai Marine Police

The Royal Thai Marine Police has jurisdiction over criminal violence occurring in coastal areas
within 12 km from shore. It also conducts boat inspection to monitor illegal activities. The Royal
Thai Marine Police has additional authority as outline in the Increased Authority of the Police in
Preventing and Suppressing Wrongful Act in Water B.E. 2496 (1953)

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 54
3.6.4.5 Royal Thai Navy

The Royal Thai Navy has authority to enforce approximately 28 pieces of legislation in relation to
wrongful acts occuring on the sea. Below is a list of laws related to C. 188 being implemented by
the Navy.

Internal and Territorial Sea (12nm.)

- Thai Vessels Act B.E. 2481 (1938)
- Navigation in Thai Waters Act B.E. 2456 (1913)
- Authority of the Royal Thai Navy to Suppress Some Wrongful Acts in the Sea B.E. 2490
(1947) (importation of goods, drugs, immigration, fisheries)
- Five laws related to labour issues namely 1) Employment and Job-Seeker Protection Act,
B.E. 2528 (1985) ;48 2) Working of Alien Act B.E. 2551 (2008) 49; 3) Labour Protection Act
B.E. 2541 (1998) 50 ; 4) Workmen Compensation Act B.E. 2537 (1994) 51 and 5)
Occupational Safety, Health and Environment Act B.E. 2554 (2011).52
- Two laws related to fisheries

Contiguous Zone (24 nm.)

Exclusive Economic Zone (200 nm.)
- Thai Vessels Act B.E. 2481 (1938)
- Two laws related to fisheries

High Seas
- Thai Vessels Act B.E. 2481 (1938)

Gaps identified
• There is a need for coordination of enforcing laws related to C. 188. Currently, there are
inspection systems under various laws done by different agencies.

48 Ministry of Labour order No. 66/55, 29 March B.E. 2555

49 Ministry of Labour order No. 134/2555, 15 June B.E. 2555
50 Ministry of Labour order No. 16/53, 16 February B.E. 2553
51 Ministry of Labour order No. 139/39, 16 July B.E. 2539
52 Ministry of Labour order No. 123/54, 20 July B.E. 2554

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 55
 • There are systems for owner of fishing vessel to obtain license to use fishing boat
(Marine Department) and fishing equipment (Department of Fisheries). This inspection is
mainly about safety equipment in the boat and fishing equipment and is not yet about
working and living conditions.
• The Ministry of Labour designates its authority to do labour inspection on the sea to the
Navy but there is a lack of a Standard Operating Procedure that meets standard, which
prescribe clear procedures in conducting fishing boats inspection in order to check the
implementation of the LPF. However, there have been six trainings for relevant agencies
to conduct inspection together and the topics include human trafficking, labour rights
and safety. Through this trial and trainings, the standard of procedure is being
developed.
• There is no separation between inspection on labour protection, immigration or other
matters due to high cost of inspection on the sea.
• PIPO system only check documents and officials do not check the actual vessel and crew
at the port while VMS system is installed but the data is rarely analyzed to discover
potential violations
• There is a system to issue a valid document before vessels (30 gross tonnage or more)
depart from the PIPO Centre that states that the vessel has been inspected for
compliance with certain provisions in current laws, but the issues inspected do not cover
all requirements under this Convention. It should be noted that this system applies to
vessels that are 30 gross tonnage or more while the Convention requires this kind of
system to be applied on vessels remaining at sea for more than 3 days which are either
24 m in length or over or normally navigating at distance exceeding 200 nautical miles.
• Lack of law or procedure to fully implement Article 43 of the Convention regarding
complaint mechanism that allow a fisher, a professional body, an association, a trade
union or, generally, any person with an interest in the safety of the vessel to submit a
claim that a fishing vessel that flies Thai flag does not conform the requirement of C. 188.
Currently, there is only a complaint mechanism that allows workers to file a complaint to
labor inspectors on violation of labor related laws.

Recommendations
• Include provisions for coordinating and inspecting fishing vessels.
• Establish mechanisms for closer monitoring which include coordination and inter-
ministerial inspection. Roles and responsibilities of each agency should be stipulated
clearly.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 56
 • Amend relevant laws to include
- Expand the issues of inspection to cover all requirements under the Convention
for the purpose of issuing a valid document confirming compliance on such issues.
The period of validity of such document may coincide with the period of validity
of a national or an international fishing vessel safety certificate, but in no case
shall such period of validity exceed five years. The system to issue such a
certificate should be equipped with sufficient number of inspectors.
- A provision to regulate fishing boats with foreign flag of the non-party countries
to the Convention, to prevent them from having more favorable treatment than
fishing boats with flag of state party to the Convention.
- A provision or procedure to reflect Article 43 of the Convention.53

53 Useful references include the ILO’s Guidelines on flag State inspection of working and living conditions on board fishing vessels

(http://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---sector/documents/normativeinstrument/wcms_428592.pdf) and Guidelines for

port State control officers carrying out inspections under the Work in Fishing Convention, 2007 (No. 188)

(http://www.ilo.org/wcmsp5/groups/public/@ed_dialogue/@sector/documents/normativeinstrument/wcms_177245.pdf).

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 57
Annex 1 – Recourse to ‘flexibility’ provisions in C. 188

The table below informally summarises the types of ‘flexibility’ to which the Government has
recourse.

Certain articles contain specific flexibility clauses—subject to tripartite consultation—including

exclusions and “substantially equivalent” requirements, as provided for in Article 28.2
(Accommodation) and Article 14.3 (Manning and Hours of Rest).

Several articles in the Convention allow for “progressive implementation” of provisions, after
consultation, provided for by Article 4.

As a final resort, the Government may have recourse to use of Article 3, after consultation, to
exclude limited categories of fishers of fishing vessels from any or all provisions of the
Convention. Exclusions under Article 3 would normally only be made when the application of a
provision to a category of fishers or fishing vessels raises special problems of a substantial nature
for which that no alternative solutions can be found that meet the requirements of the
Convention.

These ‘flexibility’ provisions (excepting Art. 14.3 on Manning) can be applied only after
consultations between government, employer associations, and worker organizations.

C. 188 Flexibility clauses Progressive Limited vessel/fisher

provision within the article implementation (Art. exclusion (Art. 3)
4)
Art 1 - N/A Yes
Art 2 Determination of Yes
whether vessel is
engaged in
commercial fishing
Art 3 N/A N/A Yes
Art 4 Vessels < 24m; at Art 4 provides for Yes
sea not more than progressive
7 days; less than implementation in
200 nm from other articles of the
coastline; not Convention
subject to port
state control

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 58
C. 188 Flexibility clauses Progressive Limited vessel/fisher
provision within the article implementation (Art. exclusion (Art. 3)
4)
Measurement Use of Length N/A Yes
(Art.5) Overall or Gross
Tonnage (for
Annex III)
instead of Length
Implementatio - N/A Yes
n (Art 6)
Competent - N/A Yes
authority and
coordination
(Art 7)
Responsibilitie - N/A Yes
s of fishing
vessel owners,
skippers and
fishers
(Art 8)
Minimum age - N/A Yes
(Art 9)
Medical Exemptions Yes Yes
certificate possible for vessels
(Art. 10) <24 m or at sea not
more than 3 days)
Art 11 - N/A Yes
Art 12 - N/A Yes
Art 13 - N/A Yes
Manning Substantially N/A Yes
(Art.14.1.a) equivalent
alternatives for
vessels <24 m
Hours of rest 14.1. Vessels at sea N/A Yes
(Art. 14) for not more than
3 days
14.2. Temporary
exception with
compensatory rest
14.3. Substantially
equivalent
alternatives for
hours of rest

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 59
C. 188 Flexibility clauses Progressive Limited vessel/fisher
provision within the article implementation (Art. exclusion (Art. 3)
4)
Crew list - Yes Yes
(Art. 15)
Art 16 - N/A Yes
Art 17 - N/A Yes
Art 18 - N/A Yes
Art 19 - N/A Yes
Fisher’s work - Yes Yes
agreement
(Art. 20)
Art 21 - N/A Yes
Art 22 - N/A Yes
Art 23 - N/A Yes
Art 24 - N/A Yes
Art 25 - N/A Yes
Art 26 - N/A Yes
Art 27 - N/A Yes
Accommodati - N/A Yes
on and food
(Art. 28)
Art 29 - N/A Yes
Art 30 - N/A Yes
Art 31 - N/A Yes
Art 32 - N/A Yes
Risk - Yes Yes
assessment
with crew (Art.
33)
Art 34 - N/A Yes
Art 35 - N/A Yes
Art 36 - N/A Yes
Art 37 - N/A Yes
Access to - Yes Yes
medical care
and protection
(Art. 38)
Art 39 - N/A Yes
Art 40 - N/A Yes
Art 41 - N/A Yes
Art 42 - N/A Yes

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 60
C. 188 Flexibility clauses Progressive Limited vessel/fisher
provision within the article implementation (Art. exclusion (Art. 3)
4)
Art 43 - N/A Yes
Art 44 - N/A Yes
Art 45 - N/A Yes
Art 46 - N/A Yes
Art 47 - N/A Yes
Art 48 - N/A Yes
Art 49 - N/A Yes
Art 50 - N/A Yes
Art 51 - N/A Yes
Art 52 - N/A Yes
Art 53 - N/A Yes
Art 54 - N/A Yes
Annex I - N/A Yes
Annex II - N/A Yes
Accommodati Existing and N/A Yes
on undecked
(Annex III) vessels
Vessels at sea
<24 hours
Substantially
equivalent
alternatives
(except for
food/water in
Art. 28.2)
Use of g.t.
instead of LOA
or LA (Art. 5)
Flexibility for
religious and
social practices
Requirements (See relevant After consultation After consultation with
for use Article) with employers, employers, workers
workers Vessels fishing in rivers,
Applies to: lakes or canals
Vessels under 24 m Limited categories of
At sea for no more fishers or fishing vessels
than 7 days
Not normally

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 61
C. 188 Flexibility clauses Progressive Limited vessel/fisher
provision within the article implementation (Art. exclusion (Art. 3)
4)
operating 200 nm
from coastline or
beyond continental
shelf
Not subject to port
State control (does
not visit a foreign
port)
Reporting (See relevant Which provisions Which categories of vessels
requirements Article) are progressively or fishers are being
applied? excluded?
What are the Where practicable,
reasons? appropriate steps taken to
What are the extend progressively the
positions of protection to excluded
employers and fishers or vessels
workers What are the reasons for
concerned? exclusions?
What is the plan for What are the positions of
progressive the employers and workers
implementation concerned?
(incl. timeline)? Measures taken to provide
equivalent protection?

Examples of recourse to flexibility provisions

The decision making process for use of flexibility provisions within the Convention:
To help address an issue with use of the provisions of an Article in the Convention, first,
flexibility provisions within the article should be considered. Second, where applicable and after
consultation, progressive implementation under article 4 can be considered. Finally, where no
other solution can be found, it may be possible—after consultation—to exclude limited
categories of fishing vessels or fishers from the provisions of any or all articles of the Convention
as provided for by Article 3.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 62
Art. 14 (Hours of Rest):
Article 14 contains two clauses that may provide flexibility on the provision:
14.1 (b) for fishing vessels regardless of size remaining at sea for more than three days,
after consultation and for the purpose of limiting fatigue, establish the minimum hours of
rest to be provided to fishers. Minimum hours of rest shall not be less than:
(i) ten hours in any 24-hour period; and
(ii) 77 hours in any seven-day period.

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 63
 14.3. The competent authority, after consultation, may establish alternative
requirements to those in paragraphs 1 and 2 of this Article. However, such alternative
requirements shall be substantially equivalent and shall not jeopardize the safety and
health of the fishers.

If, after use of these flexibility provisions, no solution can be found to meet the requirements of
the Convention, Thailand may—after consultation—exclude limited categories of fishers from
this requirement of the Convention. Then, “[w]here practicable, the competent authority shall
take measures, as appropriate, to extend progressively the requirements under this Convention
to the categories of fishers and fishing vessels concerned.”

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 64
Annex 2 - List of focus group participants

Day 1 Morning (16 November 2016 9.30-13.00) - Civil society organisations and social partners
1. Mr. Paniti Siriketh Consultant, Employers' Confederation of Thailand
2. Mr. Pornpoj Ngamwiriyatham Manager, The Thai Overseas Fisheries Association
3. Mr. Wiriya Sirichaiekawat Consultant, The Thai Overseas Fisheries Association
4. Mr. Kamolsak Lerdpaiboon Vice President, National Fisheries Association of
Thailand
5. Mr. Somsak Manop The State Enterprises Workers’ Relations
Confederation
6. Ms. Apinya Tajit Deputy Director, Stella Maris Seafarer Centre
7. Mr. Nopasorn Tajit Stella Maris Seafarer Centre
8. Mr. Adisorn Kerdmongkol Coordinator, Migrant Working Group
9. Ms. Preeda Thongchumnum Member, Migrant Working Group
10. Ms. Wilaiwan Koykaewpring Director, International Labour Standards Group,
Ministry of Labour
11. Ms. Kuanruthai Siripattanakosol National Project Coordinator, Triangle II,
International Labour Organization
12. Ms. Sikharin Singsakorn Coordinator, International Labour Organization
13. Ms. Supawadee Chotikayan Coordinator, International Labour Organization
14. Ms. Chayanich Thamparipattra Consultant, International Labour Organization

Day 1 Afternoon (16th November 2016 9.30-13.00) – Labour related issues

1. Ms. Tharinee Limchularat Department of Labour Protection and Welfare, MoL
2. Ms. Sunee Tantiwutthipong Department of Labour Protection and Welfare, MoL
3. Acting Sub Lt.Nawarat Saraneeyapong Department of Labour Protection and Welfare,
MoL
4. Ms. Chatrudee Lelasuksan Department of Employment, MoL
5. Ms. Kannika Bunmee Department of Employment, MoL
6. Ms. Duangporn Na Pompetch Legal Division, Department of Fisheries, Ministry of
Agriculture and Cooperatives (MoAC)
7. Cdr. Pornchai Singhbun Department of Fisheries, MoAC
8. Ms. Rajit Wichienchai Department of Fisheries, MoAC
9. Ms. Sasiyada Naowanon Protection of Thai Nationals Abroad Division,
Department of Consular Affairs, Ministry of Foreign Affairs

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 65
 10. Pol.Lt.Col. Chanat Jaimuen Marine Police Division, Royal Thai Police
11. Ms. Bubpa Sakulmanee Social Security Office, MoL
12. Ms. Pitchyaporn Kulseth Social Security Office, MoL
13. Ms. Pimpaporn Puthisakulwong Department of Health, Ministry of Public Health
(MoPH)
14. Ms. Wikarnda Surabut Department of Health, MoPH
15. Mr. Piyanut Namchoo Department of Health, MoPH
16. Dr. Prasuth Thawornchaisith Department of Medical Services, MoPH
17. Ms. Nitiporn Chantang Department of Medical Services, MoPH
18. Ms. Nawaporn Daochang Department of Medical Services, MoPH
19. Mr. Nithipath Wathanasuwakul Prevention of Human Trafficking on Labour
Operation Centre, MoL
20. Ms. Dusdee Autnatho Office of the Permanent Secretary, MoL
21. Mr. Supat Srinang Marine Department
22. Ms. Samaporn Nilprapan Council of State
23. Mr. Ekchai Taechawantoo Department of Fisheries, MoAC
24. Ms. Pornpan Kwakhong Ministry of Public Health
25. Ms. Jeeranuch Khongmanee Social Security Office, MoL
26. Ms. Raksa Tupsuwan Social Security Office, MoL
27. Ms. Arun Sarawut Social Security Office, MoL
28. Mr. Wuthinan Jantasawee Social Security Office, MoL
29. Ms. Kuanruthai Siripattanakosol National Project Coordinator, Triangle II,
International Labour Organization
30. Ms. Sikharin Singsakorn Coordinator, International Labour Organization
31. Ms. Chayanich Thamparipattra Consultant, International Labour Organization

Day 2 – Law Enforcement and Vessels related Issues (17 November 2016 9.30-16.00)
1. Ms. Tharinee Limchularat Legal Division, Department of Labour Protection and
Welfare, MoL
2. Ms. Sunee Tantiwutthipong Occupational Safety and Health Bureau, Department
of Labour Protection and Welfare, MoL
3. Mr. Saichol Chamchang Department of Labour Protection and Welfare, MoL
4. Ms. Chatrudee Lelasuksan Department of Employment, MoL
5. Ms. Darin Jirarachnirom Department of Employment, MoL
6. Ms. Kannika Bunmee Department of Employment, MoL

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 66
7. Mr. Supat Sirnang Marine Department
8. Mr. Narongdej Kumplien Marine Department
9. Mr. Prasit Songsuk Inspection Division, Department of Fisheries
10. Mr. Methus Raksri Fishing Vessel and fishing Management Division,
Department of Fisheries
11. Sumet Chengsaard Fishing Vessel and fishing Management Division,
Department of Fisheries
12. Ms. Duangporn Na Pompetch Legal Division, Department of Fisheries, Ministry of
Agriculture and Cooperatives (MoAC)
13. Pol.Lt.Col. Yuthapong Huangthong Marine Police, Royal Thai Police
14. Pol.Capt. Sommarth Thamsonthi Marine Police, Royal Thai Police
15. Cdr. Pongsak Somwong Thailand Maritime Enforcement Coordination
Centre Area
16. Ms. Rajit Wichienchai Department of Fisheries, MoAC
17. Ms. Wanaporn Prompaskorn Office of the Permanent Secretary, MoL
18. Ms. Pornchamni Wangarkard International Labour Standards Group, Ministry of
Labour
19. Ms. Piengpaap Withayachamnan Consultant to Permanent Secretary, MoL
20. Ms. Wilaiwan Koykaewpring Director, International Labour Standards Group,
Ministry of Labour
21. Ms. Kuanruthai Siripattanakosol National Project Coordinator, Triangle II,
International Labour Organization
22. Ms. Sikharin Singsakorn Coordinator, International Labour Organization
23. Ms. Chayanich Thamparipattra Consultant, International Labour Organization

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 67
Annex 3 – Number of migrant workers allowed to work temporarily in the sea fishing sector in
Thailand, 2014 - 2016

Legal Provision Date Total Cambod. Lao Myanmar

1. Announcement of the 26 June 60,285 26,900 2,118 31,267
NCPO No. 70/2557 (26th June 2014-31
– 31st October 2014) March 2015
2. Cabinet Resolution, 3
March 2015 (1 April 2015 –
30 June 2015)
Extension of the NCPO 1 April 2015 30,401 13,184 1,279 15,938
Announcement – 31 March
2016
New Registration 1/2558 1 April 2015 54,402 22,746 1,159 30,479
– 31 March
2016
New Registration 2/2558 2 November 21,557 9,009 446 12,102
2015-1
November
2016
3. Cabinet Resolution, 2
February 2016
Extension of the Registration 2 February 23,884 9,890 493 13,501
2/2558 2016-31
January
2017
4. Cabinet Resolution,
23 February 2016
‘Pink card’ holders 1 April 2016 15,816 7,000 519 8,297
– 31 March
2017
National verification 1 April 2016 1,968 136 6 1,826
– 31 March
2017
Source: Department of Provincial Administration

Situation and Gap Analysis of the Work in Fishing Convention (No. 188) 68