There is no employer

On 1 July 2022 — around 300 prisoners from eleven prisons and correctional institutions were released for the day to begin clearing Bangkok’s drains.

The programme covered fifteen districts, sixty-six routes, 530 kilometres, with a three-month target. It was launched formally, in front of cameras, outside a central prison in Chatuchak. It was reported as good news and, on the face of it, it was.

Article 07 Why Bangkok floods — and why it’s mostly not the rain established why Bangkok floods, and the short version is that it mostly isn’t the rain. A city that is partly below sea level, on a river basin falling a metre and a half per hundred kilometres, with a drainage network that was substantially filled in to make roads, depends utterly on the drains it has left actually being clear. Clearing 530 kilometres of them before the wet season is a straightforwardly useful thing to have done.

What I want to look at is the arrangement, because it is unusual, and because when you follow it down you arrive at a question I could not answer.

Nobody was hired

Start with the thing that seems like an administrative footnote and isn’t.

The BMA did not contract the Department of Corrections to do this work. Thai reporting at the time recorded the department clarifying exactly that: there was no hiring, because procurement law would not accommodate it.

So the work was not a contract. It was a public-works programme carried out by prisoners, arranged between two state bodies, with no procurement, no tender, no supplier and no contractor.

And no employment.

What the statute says about pay

The Prisons Act B.E. 2560 (2017), section 50, provides that a prisoner has no right to wages for work assigned by the prison.

That is not an oversight or an interpretation. It is the express position. What a prisoner may receive instead is รางวัลตอบแทน — reward compensation — calculated as a share of the proceeds of the work, reported at 70% for those under compulsory labour.

For work outside the prison there is a second form of compensation, and it is the more valuable one.

One day worked is one day off the sentence.

I want to be fair about this, because it would be easy not to be. Remission is not a token. To somebody serving a sentence it is worth more than almost any sum of money you could offer instead, and a programme that converts work into earlier release is offering something people genuinely want. The department presents the scheme as voluntary, rehabilitative and of public benefit, and every one of those claims is plausible on its face.

The observation is narrower and it is structural. The compensation for this work is denominated in liberty, and liberty is a currency that one party to the arrangement issues, values and controls. That is not an accusation. It is a description of the instrument.

Now the question I could not answer

Here is what makes this more than a curiosity about pay.

Clearing a drain is confined-space work.

That is not a rhetorical framing, it is a technical classification, and it is one of the most heavily regulated activities in occupational safety anywhere in the world. The reason is that hydrogen sulphide and oxygen deficiency kill quickly, without warning, and characteristically kill the second person as well — the one who climbs in to help. Confined-space fatalities are notorious for arriving in twos and threes for exactly that reason.

Thailand has the regime. The Occupational Safety, Health and Environment Act B.E. 2554 (2011) and its ministerial regulations set out the apparatus: entry permits, atmospheric testing before and during work, trained supervisors and attendants, defined rescue arrangements, and mandatory training. The Act also imposes general duties — provide and maintain personal protective equipment, train workers before they start — with penalties reaching a year’s imprisonment or ฿400,000.

Those duties run from an employer to an employee. That is the architecture of the Act. นายจ้าง and ลูกจ้าง.

So: in an arrangement with no contract, no hiring, no wages and no employer, does the confined-space regime attach?

I could not establish the answer, and I looked. I found no authority, no ruling, no departmental guidance and no commentary addressing it. It is possible that the protections apply through some route I did not find. It is possible that Corrections applies equivalent standards internally as a matter of policy. It is possible that supervising engineers on site carried the duty. I am not asserting that anyone was unprotected, because I do not know.

What I am saying is that a question this consequential should not be difficult to answer, and it was.

Why this is article 89 with the volume up

The site’s second structural finding is that Thai protections work when they are universal and fail when they are categorical, because a category is always drawn around people who already had options. Labour law attaches to employee. Heat regulation attaches to workplace — article 86 Outside is not a workplace found that being outdoors is not one. Insurance attaches to can afford the premium.

Every one of those leaves somebody outside.

This is the outside. A prisoner is, by statute, the one person in Thailand who performs work and cannot be an employee of anybody. Not by an eligibility rule that might be redrawn — by the definition of their status.

And the state solved a genuine service-delivery problem by routing hazardous work to precisely that population, without anybody deciding to do so. The chain is entirely mundane at every link. The drains needed clearing. Contracting it to Corrections was not possible under procurement law. Prisoners were available, the department runs work programmes, remission provides a real incentive, and the public benefit is obvious.

Nobody in that chain did anything wrong and the outcome is still that a confined-space job was performed by people whose statutory coverage nobody can readily tell you.

That is the shape this site keeps finding, and this is the sharpest version of it. Article 118 No lawful version found a trade with no lawful form. This is a lawful form with no employer in it.

What would settle it

Three things, none of them difficult for anyone with standing to ask.

One: a statement from the Department of Labour Protection and Welfare on whether the B.E. 2554 (2011) Act’s confined-space regime applies to prisoners on external work programmes. A yes or a no. Either would be publishable.

Two: the safety protocol actually used. Whether atmospheric testing was performed, whether attendants were posted, what equipment was issued. If it was done properly, that is a good story and the department should want it told.

Three: whether anybody was hurt. I found no reporting of an incident, which is genuinely reassuring and is not the same as a record. Absence of coverage is not absence of harm, and I am not going to treat it as such.

Common misconceptions

“The prisoners were paid for this.” By statute they have no right to wages for assigned work. They may receive reward compensation from proceeds, and one day off the sentence per day worked.

“The BMA hired the prison service.” No. Thai reporting recorded that hiring was not possible under procurement law; the arrangement was between state bodies without a contract.

“Prison labour is obviously exploitative.” The programme is presented as voluntary and rehabilitative, and remission is genuinely valuable to participants. The question this article raises is about safety coverage, not motive.

“Drain clearing is unskilled labour.” It is confined-space work, among the most heavily regulated activities in occupational safety anywhere, because the atmosphere can be lethal and kills rescuers too.

“Thailand has no confined-space law.” It does — under the Occupational Safety Act B.E. 2554 (2011), with permits, atmospheric testing, attendants and rescue arrangements. Whether it reaches this arrangement is the open question.