Discrimination during COVID-19: Assessing migrant workers’ vulnerability to forced labor in Thailand’s seafood industry

Discrimination against migrant workers prior to the COVID-19 pandemic

Discriminatory policies against migrant workers predate the COVID-19 pandemic. According to the ILO, “The disparate treatment of migrant workers […] is a reflection of larger social disparities and policies that perpetuate discriminatory treatment. This exclusion is especially hard on fishers, as their access to social protection is generally more limited […]” (ILO, 2022b: 2).

Prior to the pandemic, migrant workers were recruited to work in Thailand’s fishing and seafood processing industries based on short-term contracts, recruitment fees, and limited labor and social protections (GLJ-ILRF, 2021: 20-43). Unlike Thai nationals, migrant workers were legally barred from forming and leading trade unions under the Labour Relations Act, B.E. 2518 (1975) and faced significant limitations in joining existing unions or engaging in genuine collective bargaining (Rogovin, 2020). Moreover, migrant workers were hindered from reporting abuses and obtaining remedy “due to lack of awareness of their rights and grievance procedures, language barriers, fear of retaliation from their employers, discriminatory attitudes of government officials, and concerns about their immigration status” (Rousseau, 2020: 3; GLJ-ILRF, 2022: 29-33).

These marginalizing policies made migrant workers particularly vulnerable to exploitation for decades and are rooted in anti-immigrant and anti-foreigner sentiments, which are marked by the rise of nativism around the world, including in Thailand. Migrant workers have historically been targets of xenophobic discrimination, in violation of their fundamental rights (Jones et al., 2021: 25-26).

Overview of Thailand’s COVID-19 policies

From March 2020 to October 2022, in response to five waves of COVID-19, ³ the Thai government enacted policies to contain the spread of COVID-19, fill the national labor shortage and alleviate financial precarity for its citizens exclusively. Many of these policies affected migrant workers in the seafood industry.

The discriminatory nature of Thailand’s COVID-19 policies

Many of the Thai government’s COVID-19 policies discriminated against migrant workers either directly or indirectly. The Constitution of the Kingdom of Thailand, B.E. 2560 (2017), outlaws direct discrimination, or “unjust discrimination against a person on the grounds of differences in origin, race, language, sex, age, disability, physical or health condition, personal status, economic and social standing, religious belief, education, or political view […] or on any other grounds […]” (Office of the Council of State of Thailand, 2017). ⁷ Thailand also ratified the ILO Discrimination in Employment and Occupation Convention, 1958 (C111), committing to (1) “equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination” (C111, Article 2). C111 prohibits both direct (as noted above) and indirect discrimination, or “rules and practices which appear neutral but in practice lead to disadvantages primarily suffered by persons of one sex, race, colour or other characteristics” (ILO, 2007: 11).

Some COVID-19 policies constituted direct discrimination. For example, interprovincial travel restrictions limited migrants’ right to mobility, whereas Thai nationals could travel across provinces with official permission (Vandergeest et al., 2021; SWG, 2022: 13). The Thai nationality requirement for COVID-19 cash handout programs also exemplified direct discrimination, as the government chose to offer Thai nationals better financial support (HRDF, 2022c). On 08 June 2021, migrant workers filed a complaint alleging that Section 33, We Love Each Other constituted unjust discrimination and segregation, in violation of the Constitution. More than one million non-Thai workers insured under Section 33 had been paying contributions to the SSF at the same rate as Thai workers, totaling more than USD 1.5 billion annually, but were denied access (HRDF, 2022b). After the Ombudsman upheld the constitutionality of the scheme, the Constitutional Court and the Central Administrative Court both dismissed the suit (HRDF, 2022a). These court decisions upheld the discriminatory nature of the scheme.

Meanwhile, other COVID-19 policies indirectly discriminated against migrants by appearing neutral, yet primarily disadvantaging migrant workers who dominate the Thai seafood industry workforce. For example, Samut Sakhon province’s “targeted strategy” during the second wave chiefly harmed migrant workers who had to quarantine in unhygienic, crowded dormitories or on vessels without sufficient food or water—policies that are likely considered unacceptable for Thais (Rajatanavin et al., 2021; GLJ-IRLF, 2022: 16). Similarly, the suspension and weakening of PIPO inspections, too, disparately impacted migrant fishers by decreasing the likelihood of uncovering labor abuses on vessels (EJF, 2021).

Another example of indirect discrimination is the MOL’s relief programs for insured persons under Section 33. Many migrant workers—especially fishers, who are not covered by the SSF—face practical barriers in enrolling in the SSF, such as an unawareness of their entitlements, language limitations, and the complex and time-consuming nature of the claim process (Aziz and Basir, 2020; Marschke et al., 2020; ILO, 2022b; Siamhan and Trirath 2020; GLJ-ILRF, 2022: 21-22). If insured under Section 33, workers needed to have enrolled at least six months prior to unemployment and have quarantined due to a COVID-19 workplace closure to qualify for government assistance. Additionally, migrant fishers are often disqualified because their employers refuse to furnish documentation (e.g., copy of passport, copy of the first page of a bankbook and employer letter of certification) (Marschke et al., 2020; Permanent Secretary of Labor, 2021; ILO, 2022b; Kunpeuk et al., 2022).

The cabinet resolutions concerning migrant workers’ registration—described as “overly complicated and changing,” “unfair to the workforce,” and “disorienting even for employers”—also indirectly discriminated against migrants by posing “a high barrier for entry” to obtain legal status (Saksornchai, 2021). For example, following the December 2020 resolution, about 80,000 to 100,000 migrant workers remained unable to apply for their work permits between January 2021 to June 2022 due to the complexity and cost of the registration process (Kerdmongkol, 2023: 12). By designing its immigration policies to be largely inaccessible to migrants, the government exacerbated migrant workers’ precarious situation during an already uncertain time for all.

Lastly, the government’s discourse on COVID-19 discriminated against migrants. In response to the first wave, the government published an official statement that highlighted “the pureness of Thai nationals who were COVID-free while foreigners were importers of the disease” (Khemanitthathai, 2021: 29). Subsequently, Prime Minister Prayut Chan-o-cha blamed “illegal immigrants” from Myanmar for inciting the second wave and bringing “much grief to the country,” which fueled anti-Burmese sentiment and online hate speech (Kuhakan and Sriring, 2020). Such xenophobic remarks made migrant workers more vulnerable to exploitation during the pandemic (Marschke et al., 2020; Vandergeest et al., 2021; Havice et al., 2020).

Debt bondage and deception

The government’s COVID-19 containment policies put migrant workers at risk of debt bondage. Financial precarity—and especially debt—increases migrants’ risk of forced labor by leaving them with little choice but to continue working for an exploitative employer (Bigio and Welch, 2020). Forced laborers thus often work to pay off a debt incurred from wage advances or loans to cover recruitment, transportation, daily living or emergency expenses (ILO, 2012). The closure of the Central Shrimp Market and the lockdown of migrant communities in Samut Sakhon caused many workers in the seafood industry to lose their jobs, and many struggled to find new employment with the strict travel restrictions in place (Marschke et al., 2020). Meanwhile, migrant fishers who were required to quarantine experienced increased financial precarity, as they could not work and received no compensation for lost income during the quarantine period, while having their wages deducted to pay for food and water on board. Moreover, migrant workers who needed to travel across provinces out of economic necessity or personal reasons, such as family emergencies, had to pay brokers thousands of Baht in fees. Some afforded these fees by borrowing money from their families or employers, incurring debt (GLJ-ILRF, 2022).

Many migrant workers also experienced increased risks of debt bondage due to the government’s immigration policies. Even prior to COVID-19, gaps in the registration system had enabled significant profits for brokers that processed immigration and work permit documents for migrant fishers and seafood processing workers (HRW, 2018). During the pandemic, the suspension of the MoU recruitment channel eliminated a major legal pathway for migrants seeking to enter Thailand, including for the tens of thousands of individuals trying to escape violence, destitution and starvation in Myanmar after the military coup in February 2021 (GLJ-ILRF, 2022: 22-23; Kunpeuk et al., 2022; Frontier Myanmar, 2022). The lack of options for migrants, especially those from Myanmar, encouraged the proliferation of informal labor brokerage networks (GLJ-ILRF, 2022: 24-25), where brokers could take advantage of migrants’ confusion regarding the ever-changing registration policies and deceive them by charging excessive recruitment fees, in violation of the ILO’s “zero recruitment fee” principle and section 42 of the 2018 Amendment to the Royal Ordinance Concerning Management of Employment of Foreign Workers (2017) (Musikawong and Rzonca, 2021: 180; MWG, 2022; ILO, 2019; ILO, 2020: 28-29). During the pandemic, nearly half (49 percent) of migrant workers relied on a broker to migrate, and many had to pay between THB 15,000–30,000 (USD 455–909) on average (Pakkawan, 2022; IOM, 02 June 2022, Validation Workshop of the Study on Supply Chain Dynamics; ⁸ Frontier Myanmar, 2022). By May 2022, brokerage fees soared as high as THB 80,000 (USD 2,424) (Pakkawan, 2022). In some cases, brokers charged fees for fake employment, upon which the migrants fell further into debt after having to pay additional thousands of Baht to a different broker for another job (Frontier Myanmar, 2022).

Many migrant workers who remained in Thailand after the border closures also fell into debt bondage due to the costly registration process. For example, according to the study by Kerdmongkol (2023) on the impact of the 29 December 2020 cabinet resolution on migrant workers, the registration scheme rendered migrant workers “vulnerable to a cycle of debt bondage due to the incurring debt caused by the unregulated levying of fees” (Kerdmongkol, 2023). While the government-estimated fees for registration ranged between THB 8,480–8,680 (USD 257–263), workers reported paying an average of THB 12,000 (USD 364) to employers, THB 17,000 (USD 515) to brokers and THB 13,000 (USD 394) to recruitment agencies (Kerdmongkol, 2023: 7). The exorbitant costs resulted from the complexity of the registration process, which required 93 percent of migrant workers to pay extra fees to receive outside help (Kerdmongkol, 2023: 16-20). As a result, 79 percent of the 195 migrant workers surveyed incurred debt in the registration process; to service their debt, about 60 percent had their wages deducted (Kerdmongkol, 2023: 25-28). The 05 July 2022 cabinet resolution had a similar effect (Kerdmongkol, 2022).

Despite these additional financial burdens on migrant workers during the pandemic, the government effectively excluded migrant workers from financial assistance policies by requiring Thai nationality or imposing stringent prerequisites that most migrant workers could not meet. Burdened with extensive debt and lacking government support, many migrant workers in Thailand became more vulnerable to debt bondage.

Retention of identity documents and abuse of vulnerability

During the pandemic, the government’s immigration policies put migrant workers at even greater mercy of their employers for their income and legal status, which allowed employers to abuse workers’ heightened vulnerability (ILO, 2022c: 12). With the border closures, migrant workers had to choose to either return to their home countries and forfeit their outstanding wages or to remain in Thailand (ILO, 2022c: 12).

Some migrant fishers were trapped in Thailand despite their wish to return home because their employers held their passports and legal documents, in violation of the 2018 amendment to the Royal Ordinance Concerning Management of Employment of Migrant Workers (ILO, 2022c: 12; United Nations Network on Migration, 2022). One reason for this practice was that vessel owners did not want their crew to seek work on other vessels (GLJ-ILRF, 2022: 36). In some cases, these workers also had to accept illegally low wages. The ILO reports, “[o]ne migrant fishing worker in Thailand recalled being paid 100 THB [3 USD] per day—less than the legal minimum daily wage—but given that the employer controlled the workers’ identification papers, the fisher had to accept these wages and continue working” (ILO, 2022c: 12).

Migrant workers who remained in Thailand had to navigate the complex and costly registration process; by January 2021, about 500,000 migrants fell into irregular status (ILO, 2022c: 16). Many employers took advantage of migrant workers’ irregular status, leaving many with no choice but to tolerate “unexplained wage cuts” and work for significantly lower wages than agreed upon in their employment contract (Frontier Myanmar, 2022; ILO, 2020c: 12; CEACR, 2022). According to the “Project to survey the impact of the COVID-19 epidemic situation,” 38 percent of fishers surveyed experienced THB 3,956 (USD 120) monthly wage deductions—nearly one-third of the average migrant fishers’ monthly wage in 2019 (Jullanan, 2021). ⁹ Meanwhile, according to a survey by the CSO Coalition for Ethical and Sustainable Seafood, 58 percent of seafood processing workers in Thailand received less than the minimum wage during the pandemic (Stride, 2021). In addition, fishers in the Fishers’ Rights Network (FRN) regularly reported instances of not being paid for months, in violation of the Ministerial Regulation on Labour Protection in Sea Fishing Work and Article 23 of C188 (CEACR, 2022).

Excessive overtime

According to the ILO, “if employees have to work more overtime than is allowed under national law, under some form of threat…or in order to earn at least the minimum wage, this amounts to forced labour” (ILO, 2012: 25). As previously mentioned, border closures and suspension of MoUs during the pandemic led to a major labor shortage in Thailand (HRDF and MWG, 2021). In May 2020, the country was short 50,000 migrant fishers (Marschke et al., 2020: 92). Consequently, only six to seven fishers would staff vessels that required 10 fishers; and they would have to work harder and for longer hours, with many only receiving four to five hours of rest per day at most (ILO, 2022b; GLJ-ILRF, 2022). This practice violated Section 5 of Thailand’s Ministerial Regulation on Labour Protection in Sea Fishing Work, which mandates 10 hours of rest in a 24-hour period and not less than 77 hours every 7 days.

Meanwhile, heightened global consumer demand for seafood during the pandemic led to excessive working hours for seafood processing workers in 2020 and 2021, in violation of the Labor Protection Act (1998), which limits working hours to nine hours per day and 48 hours per week (GLJ-ILRF, 2022: 39). Workers reported exhaustion from working from 5:00 AM to 8:00 PM, 7 days a week, and those who asked to rest were threatened with no overtime pay for the following week (GLJ-ILRF, 2022: 39).

Abusive working and living conditions

Due to the excessive working hours, migrant fishers suffered more workplace accidents. However, they were often denied access to personal protective equipment (PPE) and sometimes denied sick leave or medical treatment—characteristics of abusive working conditions (Siamhan and Trirath, 2020; ILO, 2022b: 1; CEACR, 2022; SWG, 2022: 39). Quarantine policies also fostered abusive living conditions. In Samut Sakhon, migrant workers at high-risk and low-risk of contracting COVID-19 had to quarantine together in dormitories described as “a ghetto” with “squalid conditions,” with shared toilets and no social distancing (Wongsamuth, 2021; Khemanitthathai, 2021: 6). In addition, the “Bubble and Seal” policy caused workers to face hunger when employers did not provide sufficient provisions (ILO, 2020c: 8). Similarly, migrant fishers forced to quarantine on vessels had to inhabit cramped quarters with limited ventilation and unsanitary toilets, and they lacked access to sufficient food, clean water or medicine (Wongsamuth, 2021; Khemanitthathai, 2021; SWG, 2022: 16; EJF, 2021).

Restriction of movement

According to the ILO, “[i]f workers are not free to enter and exit the work premises, subject to certain restrictions which are considered reasonable, this represents a strong indicator of forced labour” (ILO, 2012: 9). Some of the government’s COVID-19 containment policies, such as the “Bubble and Seal” policy, required workers to remain on work premises and continue working. If workers only stayed to work as a consequence of the containment policies, then the policies may have compelled workers to remain in undesirable or abusive jobs.

Restrictions on union rights

Restrictions on freedom of association during the pandemic created barriers for migrant workers to address forced labor conditions in their workplaces. For example, the lack of worker representation among seafood processing workers—stemming from the continued legal ban on migrant workers’ right to form and lead unions in Thailand—precluded them from demanding better workplace protections and housing arrangements after the COVID-19 outbreak in Samut Sakhon (Rogovin, 2021). Migrant fishers who were obligated to quarantine on vessels faced similar limitations. Moreover, the bans on public gatherings and strikes, which levied fines or imprisonment for noncompliance, prevented migrant workers from receiving basic rights education from advocacy groups, who also risked arrest (SWG, 2022), and impeded them from organizing to collectively challenge discriminatory policies.

Weakened labor inspections

Modified PIPO inspections during the pandemic also made it more difficult for Thai officials to identify and remedy cases of forced labor in the seafood industry. Labor inspections are critical to identifying labor abuses, but as previously discussed, fishing vessels were not permitted to come ashore for extended periods of time, nor subject to regular onshore inspections, during the pandemic. At some PIPO centers, inspections of normal-risk vessels were not conducted (EJF, 2021), likely permitting abuses to go undetected. Even the inspections that were carried out proved to be ineffective. The International Transport Workers’ Federation (ITF) described PIPO inspections as being too “superficial” to actually identify and correct violations (ITF, 2021; see also, consensus from EJF, 2021: 5-22; HRDF, 2021; CEACR, 2022). At several inspections, no inspectors boarded the vessels, and online inspections did not involve any worker interviews (EJF, 2021: 8, 33; SWG, 2022: 53-54). Thus, on 18 January 2022 there was a Cabinet Resolution requiring the 60,288 PIPO inspections to be facilitated by the MOL from October 2020 to January 2022, but only 20 fishing vessels—or 0.03 percent of all vessels—were reported to have labor violations, none of which were for forced labor (SWG, 2022: 53-54). According to the United States (US) government’s 2022 TIP Report (U.S. Department of State, 2022: 537, 539), this was because “inconsistent and ineffective interviewing practices during labor inspections left many labor trafficking victims unidentified.”