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Sexual Harassment in the Workplace

This article and its contents do not constitute legal advice and are not meant to serve as legal advice. It merely introduces the extant laws surrounding sexual harassment in the workplace in Thailand.

Sexual harassment has been a frequent topic of conversation in the news these last few years. In June of this year, an international instrument relating to violence and harassment was adopted by countries that are parties to the International Labour Organization (‘ILO’). This instrument is the 2019 Convention on Violence and Harassment in the World of Work (the ‘Convention’). The Convention provides a formal definition of violence and harassment in the workplace and gender-based violence. Thailand has yet to ratify the Convention, but will consider the international instrument in improving current laws to prevent and respond to sexual violence and harassment.

Current Domestic Legislation

The current laws governing behaviour related to sexual harassment are found in the Labour Protection Act B.E. 2541 (“LPA”), the Criminal Code, Notification of the State Enterprise Labor Relations Committee, and Supreme Court Judgment No. 1372/2545. Although Thailand is a civil law country and precedent is not binding on lower courts, past judicial decisions may be used as reference and influence future disputes.

The Labour Protection Act (Section 16) punishes “an employer, a person in charge, a supervisor, or an inspector” who commits sexual assault, sexual abuse, or sexual harassment against an employee. Pursuant to Section 147 of the LPA, any person who violates Section 16 of the LPA is punished with a fine of up to twenty thousand baht. The law applies equally to offenders of all genders.

The Criminal Code punishes sex offenders, stipulating that:

   An offender who bullies, oppresses, intimidates another person, or causes shame or pain, is liable to a fine of up to five thousand Baht.

   An offender who makes an offensive gesture or display in a public place, or unwelcome behaviour of a sexual nature in public, is liable to imprisonment of up to one month and/or a fine of up to ten thousand Baht.

   An offender who makes an offensive gesture or display in a public place, or unwelcome behaviour of a sexual nature, and is in position of authority over the victim (such as an employer), is liable to imprisonment of up to one month and/or a fine of up to ten thousand Baht.

Government officials are subject to the LPA and to the Civil Service Act B.E. 2551 (2008), which discipline civil servants guilty of sexual abuse or sexual harassment. Sexual abuse or harassment are described in the Office of the Civil Service Commission (OCSC) Regulation, under section 8 (5) and section 83 (8) of the Civil Service Act, B.E. 2551.

Article 10 of the Notification of the State Enterprise Labor Relations Committee on Minimum Standards of Employment Conditions in State Enterprises, referring to the State Enterprise Labor Relations Act, B.E. 2543 (2000), protects employees of state enterprises similarly to section 16 of the LPA.

Supreme Court Judgment No 1372/2545. An employee who held a position of power in a workplace persuaded a female employee to go out with him and if she refused the request, he would punish her at work. The plaintiff was suspected of intending to sexually abuse the female employee er section 16 of the Labor Protection Act, and this significantly affected the female employee’s ability to work. The Court ruled that the behaviour of the employee was unethical and violated the regulations of the victim’s work and personnel management. The court decided that the employee who abused his position could be terminated without severance pay under section 119(4) of the Labour Protection Act.

International Law

At present, there are few international instruments developed to combat gender-based violence in the workplace. Article 1 of the ILO Convention 190 (“C190”) defines violence and harassment and gender-based violence:

(a)   the term “violence and harassment” in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;

(b)   the term “gender-based violence and harassment” means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment.

Sexual harassment is yet to be included in the ‘core’ labour rights of the ILO. C190 was published in 2019 and is the first international treaty to address workplace harassment. Thailand has not ratified the treaty yet, so is not legally bound to the terms. Not approving the C190 means we risk not critically solving harassment and sexual abuse in the workplace.

Fortunately, a conference was held in Thailand in February 2020 to discuss how the government could implement C190 recommendations into Thai workplaces. At the meeting, there were calls for employers to implement zero-tolerance policies within the workplace. The Thai Government appears eager to drive the United Nations 2030 Agenda for Sustainable Development and reduce inequality and promote safe work for all.

To date, Thailand has acceded to four international Conventions that touch on the issue of harassment:

   Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was acceded in 1985;

   The ILO Convention No.100 on equal remuneration for men and women workers, which the Thai government ratified in 1998;

   C182 of Worst Forms of Child Labour Convention, 1999 (No. 182), which was ratified in 2001 which discusses discrimination; and

   C111-Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which was approved in 2017.

Although there is no uniform definition of prohibited behaviour, sexual harassment is generally understood to mean unwelcome behaviour of a sexual nature. The United Nations (UN) General recommendation 19 for the Convention on the Elimination of all Forms of Discrimination Against Women, ratified by Thailand, defines sexual harassment.

Committee on the Elimination of Discrimination against Women, General Recommendation 19 *

Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, pornography, and sexual demands, whether by words or actions.

Such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory when the woman has reason to believe that her objection would disadvantage her concerning her employment, including recruitment, promotion, or when it creates a hostile work environment.

* Committee on the Elimination of Discrimination against Women, General Recommendation 19, Violence against women (Eleventh session, 1992), U.N. Doc. A/47/38 at 1 (1993), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 243 (2003).

To understand sexual harassment, we must also consider the actions that can constitute sexual harassment according to UN WomenWatch.

Subtle harassment is a behaviour but not a legal term and is understood to be unwelcome behaviour of a sexual nature that, if allowed to continue, could create a QUID PRO QUO and a Hostile Work Environment for the recipient (such as unwelcome sexual comments or jokes):

   Quid pro quo harassment is when employment or employment decisions for an employee are based on that employee’s acceptance or rejection of undesirable sexual behaviour (e.g., firing an employee when this employee refuses to go out with them). This type of sexual harassment is sexual abuse even if the victims agree or are in servitude or surrender because the agency’s interests are served in exchange.

   A hostile work environment is created by unwelcome sexual behaviour or behaviour directed at an employee because of that employee’s sex that is offensive, hostile or intimidating and that adversely affects that employee’s ability to do their job.

What would it take to end sexual harassment?

In addition to establishing policies within companies, there is a cultural component that needs to be addressed. The ILO R206 – Violence and Harassment Recommendation 2019 (No. 2060 has laid out several approaches that employers can take to prevent sexual harassment and abuse. These include:

1.   Fostering a supportive and inclusive culture;

2.   Dismantling gender norms in the workplace;

3.   Encouraging mutual respect between employers and employees;

4.   Addressing instances of sexual objectification in the workplace with a zero-tolerance policy;

5.   Providing employees with educational training about sexual harassment in the workplace;

6.   Displaying a workplace policy or code of conduct that defines sexual harassment and clearly states that the company has a zero-tolerance approach to the matter;

7.   To take real disciplinary action against acts of harassment in the workplace; and

8.   Ensure that there is a safe and fair assessment of complaints that protects the victims’ confidentiality.

Additionally, governments can protect employees against sexual harassment through the following recommendations:

1.   Close legislative gaps that prevent protection against sexual harassment, like simplifying the procedures and measures for filing sexual harassment complaints to government agencies, accelerating the proceedings of considering the criticisms by the officials and the court, etc.;

2.   Ensure a fair, effective and confidential response to claims of harassment by state officials with the police, Office of the Civil Service Commission (OCSC), Ministry of Complaint Management Committee, Human Rights Committee (under section 23 of the National Human Rights Commission Act B.E. 2542), and Ombudsman (according to section 23, 24 and Section 35 of the Complementary Act of the Constitution on Ombudsman, B.E. 2552);

3.   Expand the coverage of anti-harassment labour laws to include independent contractors, trainees, volunteers, etc.;

4.   Implement nation-wide workplace risk assessments that take into account gender culture and harassment;

5.   Raise awareness of the issue through public education curriculums; and

6.   Ratify the ILO C190 and C206.

 

To request more information on MPG Dispute Resolution services, including labour law, harassment, employment agreements, and wrongful dismissal, please address your request to our Litigation Department at info@mahanakornpartners.com

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