March 9th 2005,
Centre for Labor Information, Service and Training

The fact that the rights to organize and collective bargaining are fundamental rights of workers often publicly recognized by the multinationals, it is no surprise that these basic rights are part and parcel of the well-orchestrated PR stints executed by brand name corporations. On top of this, these rights are supposedly and strictly imposed upon many locally contracted producers/manufacturers. This is basically why millions of workers around the world have pinned their hope on the genuine recognition of these rights. They have no reason to think otherwise but to feel more confident, in good faith, to exercise their rights to organize and collective bargaining.

In practical terms, workers or trade unionists, who dare to organize their own unions at workplaces, should not be subject to undue intimidation or any form of threat in their genuine attempts to call for collective bargaining. I myself was a firm and honest believer that recognition of the rights to organize and collective bargaining would be a big step towards productive development of good labour relations. Believing so, I had made earnest attempts to properly inform workers, both organized and unorganized, of the Code of Conduct widely propagated by big corporations and many multinationals.

As far as the workers were concerned, they could not help but feeling more confident to initiate and organize their own respective unions in Thailand. No doubt, the Code of Conduct adopted and practice by big corporations and/or multinationals as well as their locally contracted producers/manufacturers was widely praised by millions of workers in Thailand as a giant step towards positive labour development, a far-cry from the oppressive conditions against union organizing they had faced decades ago.

Looking back to the bitter conditions most workers have experienced decades ago, when trade unionists had to keep low profile while potential leaders were often subjected to "the first to be fired but the last to be hired" rule. Such conditions were the direct results from the unjust labour laws introduced and enforced in Thailand, where workers who took careful and legal steps to organize their own trade unions were simply not legally protected by the existing labour legislatures during the initial period of organizing. This is why the labour history in Thailand saw many cases of trade unionists subjected to arbitrary dismissals. They were the most vulnerable to be sacked and blacklisted by the employers' network or association. Once the union had been legally registered with the competent government agency, union organizers or "initiators" (meaning the first group of workers who convened the meeting and duly penned their names as the first group of conveners), the organizers were then protected, only at a certain degree, by the existing labour law. By virtue of the labour law, no full-time workers, members of legally registered labour union, shall be subject to unfair treatment, arbitrary reassignment or unjustifiable dismissal, for being a member of legally registered trade union.

However, in practice the employer could often find some causes or create a certain situation dovetailing specific legal loopholes to sack the "targeted" workers or trade unionists. This is why union initiators have always been "the first to be fired but the last to be hired".

Meanwhile, Thai labour laws and legal procedures, both pre-trial and during labour court proceedings, have always been extremely difficult for most workers to understand. Under these oppressive conditions, many of the "targets" to be eliminated by anti-union bosses were forced or compelled to accept meager or undue compensation instead of taking a firm stand in claiming their rights to be duly reinstated. Subsequently, it is widely recognized among workers and trade unionists alike that the legal process and labour law tend to be lopsided against workers and their unions, while giving more advantages to employers. The point of concerns have long been the existing legal loopholes being taken full advantages by employers, providing legal grounds for the bosses to find fault with employees. Having stated that, another clear disadvantage is the long and protracted legal process, placing unfairly sacked workers or trade unionists in a more miserable position. Living from hand-to-mouth or earning a meager income even when regularly employed, the protracted legal process always economically forced the dismissed or unfairly treated workers to accept some forms of pre-trial compromise or out of court settlement. Fighting for a just cause, in most cases, have proved to be too painful to take when there is not enough food on the table for his/her family.

Against this backdrop, once the Code of Conduct was universally announced and supposedly would be put into practice, the workers around the world, Thai workers included, could not help but feeling more secure to wage their just struggle. The content itself has more legal implications, possibilities and covered more legal grounds for workers to fight for their just causes. At least, it has provided workers around the world with more legal and justifiable grounds to voice their grievances. In several cases in the past years we have seen some victories where workers who previously were fired for organizing got rehired and unions were recognized after putting pressure on the brands, and forcing live up to their principles as advocated in the Code of Conduct. To say the least, The Code of Conduct itself provides a new set of internationally recognized principles and legitimate grounds for safeguarding, protecting and campaigning for their rights to organize and to collective bargaining. It came with no surprise numerous trade unions as well as labour-concerned NGOs have taken more initiatives to work in concerted actions to disseminate the content and essence of the Code of Conduct. Time and great efforts and necessary resources have been devoted to this joint endeavor across national boundaries. At the same time, the workers themselves have readily embraced this seemingly great development while feeling proud to be employed by any of the established workplaces, which have publicly pledged to uphold the said Code of Conduct.

Unfortunately, the positive effects on the right to organize and collective bargaining are still very small. In many cases this universally recognized Code of Conduct has turned out to be just another well-formulated PR campaign and has proved to be just another form of window-dressing to project positive and respectable image for big corporations or multinationals as part of the so-called "good practice" scheme. In practice, employers have adopted every possible means to avoid acting in full compliance with this Code of Conduct. Worse still, many employers, even when functioning as locally contracted producers/manufacturers, have chosen to ignore many complaints or grievances duly filed by workers or trade unions, especially regarding cases of violation or breach of the said Code of Conduct. The situation becomes worse when there is no viable, effective and functional mechanism to effectively enforce the Code of Conduct

Many of us were hoping that the first small victories would be the start of a move towards genuine respect for freedom of association and more widespread actual implementation of the Code of Conduct. We were willing to accept that this is a slow process and that we would need to work together. However, in a recent case in Thailand, MSP Sportswear Co. , the Code of Conduct propagated by NIKE and the one of Decathlon , seems to be a hoax when referring to the hiring practice and anti-union actions taken by its locally contracted producer/manufacturer - the MSP Sportswear Co., Ltd., in Thailand. It is no secret that this particular company has been producing sportswear for NIKE and Decathlon for years. The obvious cause of concern is due to the unfair dismissal of three (3) core members of the factory union there, especially when a formal complaint submitted to NIKE as the principal entity was met with a rather slow response. So far, three (3) months have passed without any clear signal or concrete response. This situation has inevitably caused a great deal of doubt that NIKE may not be genuinely or seriously committed to its widely publicized Code of Conduct, which had created some false hopes among workers producing NIKE products in Thailand believing that their basic labour rights and minimum benefits would be duly protected. Strangely enough, on an earlier occasion, when some of the same workers were dismissed at the same company, Nike monitors did intervene in a positive manner. Is Nike moving backwards?

Once the dismissal had taken affect on October 29, 2004, clearly constituting a gross violation of the Code of Conduct highly publicized by NIKE worldwide. Initially, the workers had made some positive gestures, acting in good faith, towards the management of MSP Sportswear in Thailand. Being forced by economic hardship, the dismissed workers were sincerely hoping that some form of reconciliation or compromise could be reached by entering into serious negotiations with the management of MSP Sportswear.

After having suffered for a long and painful month, the Center for Labour Information Service and Training (CLIST) was urged by the affected workers to issue a formal letter to the MSP dated November 23, 2004, expressing grave concern for the seemingly slow response while urging the company to reinstate the unjustifiably dismissed workers. It must be noted also that a copy of the same letter of concern was sent to NIKE for the record. The result of which was a total disappointment to the affected and dismissed workers for NIKE failed to take any action or offer any comments or response.

Later on December 14, 2004, the union had earnestly tried to follow up on the possible reaction from NIKE in Bangkok, enquiring as to why no response was forthcoming. The simple answer given was that the said letter had never been received. Upon checking up on the E-mail address of NIKE in Bangkok, it was duly transmitted and received but subsequently deleted as a precautionary measure against some viruses. Such a simple answer was noted with much regret and disappointment on part of workers suffering from unfair treatment and dismissal. Clearly, it was an irresponsible act on part of some lowly administrative personnel working for NIKE in Bangkok, who might have been ignorant of the universally recognized Code of Conduct. Thus, this unfortunate and regrettable act executed by such a low-ranking NIKE employee could be forgiven, but certainly not forgotten.

On the very same day, the joint conference was called and chaired by a labour official, serving as the official Labour Dispute Reconciliator, Mr. Somphop Maleekaew, essentially to explore some possible grounds for reconciliation between the MSP Sportswear and the Union. At this particular meeting, the official reconciliator categorically expressed his view to the team of 5 representatives of MSP and to a representative of the Fair Labour Association (FLA) that the dismissal of the three (3) trade unionists had been primarily and essentially attributed to their union activities. Meanwhile, MSP had proposed to pay an additional compensation amounting to ten (10) times of the salaries earned by the three (3) respective dismissed workers/trade unionists.

At the said meeting, it was noted that the MSP representative openly claimed that three (3) trade unionists were treated with hatred by the majority of the workforce. The same MSP representative also claimed that a formal letter endorsed by a list of workers had been submitted to the Management urging the Company to lay off all of the trade unionists. Reacting to such a remark, the union representatives categorically questioned the legitimacy of such a fabrication by pointing out the fact that some of the signatories of the said letter did not even know the dismissed trade unionists. Thus, how could it be possible that such animosity and hatred be expressed towards the three (3) trade unionists. Even if it existed, it could only be perpetrated and fueled by management aiming at fabricating and justifying the cause for dismissal or termination of their employment.

It must be noted also that this fabrication was hastily made only a few days prior to the dismissal and after the Management had failed to convince two of the three trade unionists, Mrs. Samai Kong-Talay and Mrs. Kanjana Patiwatwong, to discontinue from all union activities.

Taking into account of the opinion expressed by the official Labour Dispute Reconciliator and the additional compensation (10 times of the last salaries earned by the three workers) formally offered by the MSP Sportswear, the dispute should have come to a conclusive end with a positive gesture that the Company was ready and willing to reinstate the dismissed trade unionists. This gesture could also have indicated the management's due respect for the plights of dismissed workers and recognition of the internationally recognized Code of Conduct. Unfortunately, it has turned out to be otherwise. NIKE has been adamant in its attitude of indifference to any genuine attempt to get some form of concrete response. The only reaction from NIKE was that any complaint or grievance should be filed with proper channels or with the Labour Relations Commission in Thailand. Faced with this uncaring attitude, the workers could only come to the conclusion that all this high profile and much celebrated Code of Conduct had proved to be totally meaningless.

In fact, NIKE had enquired for facts and related evidence from both the MSP Sportswear and the Union, but somehow not a single report of finding has been disclosed to all parties concerned. This situation has inevitably invited more questions as to why such a reputable corporation decided not to disclose the said report or finding, especially when failure to disclose its finding would most likely to damage its public image. On the contrary, NIKE had more to gain for being receptive to any formal complaints or grievances voiced by the workers, whose rights and benefit had been denied and the Code of Conduct had not been applied in their case.

Under these circumstances, the dismissed workers again urged NIKE to call for a joint-reconciliatory meeting to be attended by the top management or fully authorized executives of MSP and the dismissed workers and/or union officials. Despite the fact that this proposed meeting could have served as a workable forum for the affected workers to present their facts regarding their unfair dismissals. Also, this meeting could lead to a form of compromise or reconciliation acceptable to all parties involved. Most importantly, this case of labour dispute could have come to a conclusive end acceptable to both parties. As far as the dismissed workers and their union were concerned, failure to respond to the call for such a meeting was a total disappointment, especially when no clear and concrete explanation has ever been offered by either NIKE or MSP.

On December 17, 2004, it was noted that NIKE had invited Mr. Peter Krautler for a meeting to find ways and means to end this long and bitter labour dispute. Unfortunately, this gesture was disrupted by MSP busing available workers to stage a rally in front of the Provincial Hall of Nakorn-Rajsima province. It was aimed at protesting against any attempt to reinstate the three (3) dismissed trade unionists. As it turned out, the protest was apparently well-orchestrated and carefully planned by the management of the Company. The fact that a convoy of 5 buses taking approximately 400 workers for a one-half day demonstration and the placards written in English were undisputed evidences of full-fledge support given by the Management. One concrete example was:-
"Why did the Center for Labour Information Service and Training (CLIST) go to USA and Europe? Why not Korat?"

Such an English language version could only have been concocted and/or suggested by the management, assuming that workers at the plant were not likely to have enough English proficiency to formulate such provoking questions. In addition, the management of MSP had also taken full advantage of the factory PA system to order their workers to join the protest for one-half day with pay, with free transport provided. With this type of fully funded protest with pay, it was self-evident that it had been blessed, planned and executed by the employer.

In fact, the question posed by the MSP management: "Why not Korat?" was totally misleading. It was a total false claim that CLIST was neither willing nor prepared to meet with the MSP management in Korat for some form of serious discussion or exchange of views and/or points of concern. This very fact can be categorically proved by a series of meeting, which were actually held between the concerned parties.

To set the record straight, the following were actions taken by CLIST:

• During the month of November 2004, at least two (2) meetings were held in Korat with one additional meeting held in Bangkok in December of the same year.
• One formal letter specifically addressed to Mr. Peter Krautler was forwarded.
• One formal letter was sent to NIKE.

The abovementioned initiatives taken by CLIST in this regard should indicated beyond any reasonable doubt that the dismissed workers and CLIST have acted in good faith and made genuine gestures to find reasonable grounds to settle the pending labour dispute. Having stated this, it should be made clear that the said initiatives had been made prior to the joint decision to solicit solidarity support from the Clean Clothes Campaign, an international organization with its secretariat based in the Netherlands. In fact, the public campaign launched in Europe and United States, as indicated in the placards displayed at the protest organized by the Company, was certainly known to NIKE. Again, no concrete response was forthcoming from NIKE.

Generally speaking, employers have the most influence over the majority of workers as well as more legal advantages over their employees, being in the position to issue orders or to set certain rules and conditions for their own best interests concerning the affairs of companies. One concrete example is when the workforce at the plant was mobilized with pay and free transport to stage a protest in Bangkok. Instead of showing some clear gesture of disapproval towards such action taken by MSP, NIKE obviously chose to remain quiet on the issue. On the contrary, NIKE decided to accept justifications concocted by MSP for not reinstating the unfairly dismissed union leaders.

Ever since the grievance was directly made known to NIKE as well as to the Fair Labour Association (FLA) to whom an official complaint was filed in early January 2005, NIKE has not yet responded to the call for due consideration on the plight of unfairly dismissed workers. Meanwhile, the workers and their union are eager and more than happy to furnish NIKE with all the necessary facts and supporting evidence proving how MSP has clearly acted in breach of the Code of Conduct.

Later, on February 15, 2005, representatives of the Union and CLIST met with Mr. Dusty Kidd, representing NIKE Head Office, along with representatives from the American Center for International Labour Solidarity (ACILS) and the Asia Monitor Resource Center (AMRC). A total of 12 representatives attended this particular meeting, which took place between 0700-0900 hours at the Max Hotel in Bangkok.

At the said meeting, the workers had clarified their position as well as presented relevant facts and evidence to Mr. Dusty Kidd. One question was also directed to Mr. Dusty Kidd, asking why MSP had refused to reinstate the unfairly dismissed trade unionists. The response was that MSP was afraid that the trade unionists would destroy the company. The dismissed workers then responded by stating that the concern was totally unfounded for the Management of MSP was afraid of something that had not yet occurred.

Thus, the concern on part of the MSP has clearly reaffirmed and served as a clear evidence that MSP had decided to sack the three (3) trade unionists for one single reason - being afraid that the trade unionists would undermine the production and business operations of the company. It has also verified the fact that the dismissal of union leaders was a direct and subsequent result from their earnest efforts to establishment a bonafide and legitimate labour union. This simply constitutes a gross violation of the Code of Conduct, the same principle proudly adhered to and highly publicized by NIKE. The exchange of views on this vital point was noted by all present at the meeting, but up to now NIKE has not yet publicly disclosed its position or offered any comment on this point.

One week after the said meeting, MSP came up with another scheme where it supported and encouraged a group of hand-picked employees to form a new, management-created house union officially named the MSP Sport Wear Labour Union . One could not help but to note that the public campaign of the last months as well as the meeting held on February 15, 2005 might have prompted the management of MSP to resort to setting up its own-version of house union, obviously to keep potential union leaders and union activities under their control. At the same time, this company-organized labour union can also serve another purpose, projecting a new public image that the company is neither a union-bashing company nor an anti-union establishment. Having created such a bogus house union, MSP can now conveniently provide NIKE a ready-made excuse not to heed any calls for justice from the workers or to entertain any complaint about any breach of the Code of Conduct.

As far as MSP Sportswear is concerned, setting up its own version of house union while destroying the genuine union set up by the workers themselves is to boost its public image as a respectable and law-abiding company acting in full compliance with the Trade Code of Conduct. Meanwhile, NIKE can also fully benefit from such a scheme and can readily project its respectable image worldwide that its locally contracted producers/manufacturers are upholding the principle of fair labour practice as enshrined in the Code of Conduct.

Concurrently, the three (3) dismissed trade unionists from the Garment Industry Labour Union have been deprived of regular and meager livelihood. In concrete terms, they and their families have been facing a great deal of economic hardship for a long and protracted period of 4 months. The only support and encouragement came from small donations, serving as a temporary survival fund, contributed by fellow workers, labour unions and labour related NGOs involved in the recent labour campaign. It was a gesture of genuine solidarity support to the dismissed trade unionists, who had conscientiously waged a courageous struggle to safeguard and uphold the principles of the right to organize and collective bargaining.

It must be noted also that while calling for NIKE to act in full compliance with the universally recognized Code of Conduct, and its own principles, one (1) of the three (3) unfairly sacked trade unionists was forced by sheer economic hardship to accept a compensation deal offered by the company.

Meanwhile, the remaining trade unionists still employed at the same plant have been "targets" of isolations and treated as "outcasts". Eventually, they could no longer take the untoward pressures and certain treatments imposed upon them by the management and decided to resign from the company. At this point, the workers-initiated house union has been undermined to the point that it could no longer function as a viable workers' organization dedicated to the task of serving and protecting the rights and interests of the rank-and-file.

Under these circumstances, I could not help but feel genuinely disappointed with the consequences from having made earnest attempts to organize the unorganized. It was partly because I was led to believe that the so-called and universally publicized Code of Conduct would serve as a just and legitimate platform to help workers exercising their fundament right to organize and their right to collective bargaining. As it turned out, I could not help but feeling responsible for the failure to fight for a just cause and sharing the sufferings of the dismissed trade unionists and their families.

Honestly, I was totally convinced that the so-called Code of Conduct would offer an internationally recognized principle for millions of workers to exercise their basic rights. Now, the attempt to organize workers at MSP Sportswear by setting up their own legitimate and independent union with the subsequent dismissals of potential union leaders, has failed to achieve its original objective, while NIKE publicly shows its attitude of indifference to the workers and their organizations.

To sum up this hard-earned experience, Nike has failed to live up to its Code of Conduct and concretely demonstrated to all concerned workers and their organizations that it has no real commitment to implement its own principles. In fact, the Code of Conduct is just a mirage or a PR scheme, a misleading propagation without any true substance. Apparently their attitude has not changed after all, even though we were led to believe that they had after some more recent positive experiences like the Jaqalanka case in Sri Lanka. It was a total disappointment to all concerned workers and genuine trade unions that I have worked with.

Up to this point, one question must be raised about Nike's and Decathlon's commitment to the principles outlined in their Code of Conduct, and to the mechanism for implementing these principles. Is it time to revise the conceptual framework of implementing such a CoC or to improve the core content or the essence of the CoC, making it possible to translate it into real and genuine practice for the purpose of safeguarding and protecting the rights and benefit of millions of workers around the world? If Nike and Decathlon are not prepared to make a real effort to implement their CoC in the case of MSP sportswear then we can have no confidence that they will do so elsewhere, and perhaps now it is the time to do away with the CoC, once and for all.

Somyot Pruksakasemsuk
Center for Labour Information Service and Training
166/23 Nattagan 3, Paholyothin 52, Klongtanon, Saimai
Bangkok 10220 Thailand
Tel.: +66+1+8229477
Email: clist(@)loxinfo.co.th