Thailand revises its laws regarding employment of foreigners. Stephen Frost, Bangkok International Associates

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1 Thailand revises its laws regarding employment of foreigners by Stephen Frost, Bangkok International Associates Introduction In June 2017, a new decree regarding the employment of foreigners in Thailand came into force, which completely repeals the previous Foreign Employment Act of It revises the duties of foreign employees, their employers in Thailand and employment agencies that arrange the employment of foreigners in Thailand. In this article, we consider the revised duties of foreign employees and their employers in Thailand only. Foreign employees exempt from the decree: The decree does not apply to the following categories of foreign employee: persons in a diplomatic or consular mission; representatives of member countries and officials of the UN and its institutions; those who perform duties or missions under agreements between Thailand and foreign governments or international organizations; those who perform duties or missions for the benefit of education, culture, arts, sports or other activities as prescribed in regulations; and those permitted by the Cabinet to enter to Thailand to perform any duties or missions. Definitions: The decree contains the following definitions: Arranging for foreigners to work means any action to arrange for foreigners who are permitted to enter into Thailand under the Immigration Act under a MOA or MOU between Thailand and a foreign government, or according to government policy on employment, to work with an employer in Thailand, with or without a service fee or remuneration. licencee means a person who holds a licence to arrange for foreigners to enter Thailand for work. work means the use of physical strength or knowledge to engage in a profession or perform work with or without wages or other benefits, except for work prescribed by the Minister. employer means direct employers or sub-contractors as defined in the Labour Protection Act, and includes natural persons or juristic persons. employee means a person who works for an employer by receiving wages. Ministry means Ministry of Labour Pausing for a moment, the definition of an employee as a person who works and receives wages, suggests that a work permit is no longer required for unpaid work. But this must surely be read together with the definition of work, under which activities excluded from such definition must be specified by the Minister. Ministerial powers: Regulations can be issued prescribing any activity as work that a foreigner is not permitted to engage in, in any locality, for any period of time, either absolutely, or subject to conditions. A foreigner may not engage in such work and no person may employ him in such work. The only exception to this is where Thailand must permit such employment under an international treaty or agreement.

2 The Minister of Interior may also designate zones for work permit holders of any specific group or in any locality. Employers must obtain work permits and pay fees if they wish to employ foreigners: An employer who wishes to employ foreigners must pay fees as fixed by regulations, based on the type of work concerned. An employer must obtain permission to employ foreigners before signing any contract of employment. Failure to pay the fee incurs a penalty in the same amount as the fee. Duties of employers who wish to employ foreigners in Thailand: The following duties are imposed on employers who wish to employ foreigners in Thailand: An employer must obtain permission to employer a foreigner in Thailand An employer must deposit security against any losses which may occur from arranging for foreigners to work in Thailand. The deposit of security, the amount, its maintenance, any change to security, deductions from security where losses occur, and any additional security required, shall be in accordance with regulations. Additional security may be required if deductions have been made from it, within 30 days of an order to do so. Failure to deposit security incurs a penalty of 2% per month until the full amount is paid. There is a procedure to apply for return of security. An employer may not demand or accept money or property from a foreigner for arranging for him to work with him in Thailand. Duty of employer to repatriate a foreign employee: Where an employer dismisses a foreigner with reasonable cause; a foreigner resigns from work; or a foreigner has completed his work with the employer; then the employer must notify the Ministry, and must make arrangements to return the foreigner to his country of origin within seven days of his ceasing to work for the employer, or from the date of contract expiry. The employer must notify the Ministry within seven days from the date of departure. Dismissal with reasonable cause means dismissal because the foreigner has committed acts that entitle the employer to terminate employment summarily. The employer must notify the Ministry if: (a) The employer terminates employment of a foreigner without reasonable grounds. In this case, if the foreigner wishes to work with another employer, the latter must deposit security and must obtain permission for the foreigner to work with him. The foreigner must start work with the other employer within 15 days of ceasing work with the previous employer. (b) The employer is unable to continue its business operations. (c) A foreigner resigns due to the employer having breached the contract of employment or the law. Where the foreigner does not start work with another employer within 15 days, the previous employer shall return the foreigner to his country of origin within seven days later, and the employer must notify the Ministry within seven days from the date the foreigner leaves Thailand.

3 Where an employer fails to return the foreigner to his country of origin, the Ministry may return the foreigner to his country and deduct the cost from the security paid by the employer. Where a foreigner has worked with an employer for the period specified in his contract, or the foreigner no longer works for the employer, the employer shall notify the licencee within seven days from the contract expiry, or the date the foreigner ceases work for the employer, so that a licencee may send the foreigner back to his country of origin. Where a licencee has ceased business operations, and the foreigner has completed work for the employer under his contract, the employer must notify the Ministry to arrange the return of the foreigner to his country of origin, by deducting expenses from the security deposited by the licencee. Regarding a foreigner who has worked and is sent back to his country of origin, the agency responsible for returning him shall collect any expenses incurred from the employer or a licencee, within the period prescribed in regulations. Where an employer fails to pay within the period fixed above, the Ministry shall deduct the money due from the security deposited and pay it to the agency that returns him. Where an employee suffers loss from an employer or a licencee who has failed to comply with the obligations above, he may apply to the Ministry to recover such loss from the security held. Foreigners working in Thailand: A foreigner may engage in any work which is not prohibited by law, after he has obtained permission to do so. This is except for a foreigner who has entered Thailand and been permitted to perform urgent and necessary work for up to 15 days only. Such a foreigner must not hold a tourist or transit visa. An employer who wishes to employ a foreigner to work in his business in Thailand must apply for a work permit and pay the fee on behalf of the foreigner. Special rules apply if the employer has BOI investment promotion or the application is made under the Petroleum Act In general, a work permit is valid for not more than two years from the date of issue A work permit holder who wishes to continue work shall apply for renewal of the work permit before it expires. A work permit holder must carry the work permit on his person or keep it at the work place during work hours, so that it may be produced for inspection. A work permit holder may not engage in work of a different category, for a different employer, locality, or conditions of work, than as specified in the work permit, unless permission is obtained in advance. No one may employ a foreigner without a work permit. No one may allow a foreigner to engage in work which is not in accordance with that specified in the work permit.

4 The employer shall notify the Ministry within seven days from the date the work permit holder resigns from work regardless of the reason. Revocation of Work Permit: A work permit may be revoked where it appears that the holder has violated this Decree or failed to comply with the conditions of the permit. The Ministry may publish a list of employers who are punished because of violation or failure to comply with this Decree. Appeals: Where the Ministry refuses to issue a work permit, refuses renewal of a work permit, or revokes a work permit, the foreigner may appeal to the Minister within 30 days from the date of receipt of the order. The decision of the Minister is final. Appeals must be decided within 30 days. An appeal is not a stay of the order, except in the case of an appeal against refusal to renew a work permit. Investigative powers: The Ministry and its officers have power to: order persons to provide information or other evidence. enter into places of business that take foreigners from a licencee during office hours to ascertain if proceedings are in accordance with this Decree. conduct a search where there are reasons to suspect that arrangement have been made for foreigners to work in Thailand or there are foreigners engaging in work illegally, or conduct a search to find and assist foreigners who are victims of violations under this Decree. seize or attach documents or evidence related to work, or the arranging for foreigners to work in Thailand, where there are reasons to believe that offences have been committed under this Decree. Power of arrest: Where an officer has found that a foreigner is working without a work permit or engaging in work different from that specified in the work permit, but the foreigner fails to comply with an order or may escape, officers have power to arrest the foreigner without a warrant, and the arrested person shall be taken to the office of the competent officer for interrogation forthwith. Fines and imprisonment for violation: The decree contains detailed provisions for fines and in some cases imprisonment for violation of duties imposed. We highlight those below which impose penalties on employers, employees or other persons: Offences by employers: Offence Accepting a foreigner for work that is not permitted, or employing a foreigner without a work permit Arranging for a foreigner to work with him in Thailand without obtaining a work permit Demanding or accepting money or property from an employee to arrange work for him in Thailand Punishment Fine of Baht 400, ,000 per each foreigner Imprisonment not exceeding one year or a fine not exceeding Baht 200,000 for each foreigner brought to work, or both. Imprisonment not exceeding six months or a fine not exceeding Baht 100,000 per demand or acceptance of money or property from each foreigner, or both.

5 Failing to give notice that a foreigner is no longer working with him. Failing to give notice after he has sent back the foreigner to his country of origin. Failing to return a foreigner to his country of origin. Employing a foreigner without a work permit Allowing a foreigner to engage in work which is not in accordance with that specified in the work permit. Failing to notify any resignation within seven days from the date the work permit holder resigns from work, for whatever reason Fine not exceeding Baht 100,000 per each foreigner. Fine not exceeding Baht 10,000 for each foreigner Fine not exceeding Baht 100,000 per each foreigner. Fine of Baht 400, ,000 per each foreigner employed. Fine not exceeding Baht 400,000 per each foreigner Fine not exceeding Baht 100,000. Offences by employees: Offence Engaging in work without notifying the Ministry in writing. Failing to provide the work permit for inspection Engaging in work of a different category, with a different employer, locality, or conditions of work, as specified in the work permit. Punishment Fine of Baht 20, ,000 Fine not exceeding Baht 10,000. Fine not exceeding Baht 100,000. Offences by other persons: Offence Punishment Failing to appear to clarify facts or failing to Imprisonment not exceeding six months or a send documents or evidence fine not exceeding Baht 100,000, or both. Obstruction of an officer carrying out duties of Imprisonment not exceeding one year or a fine entry, search or seizure of documents not exceeding Baht 200,000 or both. Failing to afford convenience Fine not exceeding Baht 10,000. Deceiving others that he can arrange for Imprisonment from 3-10 years or a fine of foreigners to work with employers in Thailand, Baht 600,000 1,000,000 per each foreigner, or can find foreign employees for an employer, or both. and by such deception acquiring money, If the offence has been jointly committed by property or other benefit from the deceived three persons or more, or by members of a person. criminal organization under the law governing human trafficking, they shall be punished by 50% more than that provided by law. A person who supports commission of such an offence, whether the offence is committed by a principal within or outside Thailand, shall be liable to imprisonment from 1-3 years or a fine Seizing a work permit or important documents of a foreigner of Baht 200, ,000, or both Imprisonment not exceeding six months or a fine not exceeding Baht 100,000, or both. Liability of directors, managers or responsible persons: Where the offender is a juristic person, if the offence by the juristic person arose from an order or action of any person, or from not issuing an order nor taking any action which must be performed under the duties of the directors, the manager, or any person responsible for the operations of the juristic person, the said person

6 shall also be liable for the same punishment as for such offence. Transitional provisions: During the period when there is no Notification regarding prohibited categories of employment, the Ministry may permit a foreigner to engage in any work, except work prohibited in regulations issued under the earlier Foreign Employment Act of All rules or orders issued under the Foreign Employment Act (1978), the Foreign Employment Act (2008), or other regulations affecting employment of foreigners which are in force prior to June 2017 will still be enforceable so long as they are not contradictory to or inconsistent with this Decree, until there have been issued any rules or orders issued under this Decree. Thus the very old regulation originally issued under the 1978 Act which prohibits foreigners from working in 39 specific categories of work, remains in force. Comment: This decree imposes liabilities to obtain permission to employ foreigners and for payment of fees, for employers to pay security (amount to be defined in regulations) if they employ foreigners, and to be liable for the repatriation of foreign employers in certain circumstances. The punishments for employers who employ foreigners who work illegally, and foreigners who work without a work permit or engage in work outside the scope permitted under the work permit are increased. Directors and others are equally liable where the primary offender is a company. The duties imposed on those who arrange for foreigners to work in Thailand, i.e. employment agencies, though not discussed in this article, are substantially increased and the punishment for non-compliance is serious. POSTSCRIPT: The government has announced that the following sections of the decree will not be enforced until 1 January 2018: Section 101 that prescribes up to five years imprisonment and/or a fine of up to Bt 100,000 to a foreigner working without a permit or outside their designated location. Section 102 that prescribes a fine from Bt 400,000 to Bt 800,000 for employers per illegal worker. Section 119 that prescribes a fine from Bt 20,000 to Bt100,000 for foreign workers who fail to notify the Ministry of their work. Section 122 that prescribes a fine from Bt 400,000 to Bt800,000 for an employer hiring a foreign worker who is registered as an employee of another entity or person. Stephen Frost, Bangkok International Associates Ltd., 2017 Bangkok International Associates is a general corporate and commercial law firm. For further information, please contact Stephen Frost by at sfrost@bia.co.th or telephone (66) /64551.