Foreign Labour Employment

LAWPLUS

Foreign Labour Employment

Oramart Aurore Saardphak, Associate

www.lawplusltd.com

Korean-Thai Chamber of Commerce

Legal Seminar

17 November 2017Holiday Inn Sukhumvit Hotel, Bangkok

LAWPLUS

The information provided in this document is general in nature and may not apply to any specific situation. Specific advice should be sought before taking any action based on the information provided. Under no circumstances shall LawPlus Ltd. or any of its directors, partners and lawyers be liable for any direct or indirect, incidental or consequential loss or damage that results fro

m the use of or the reliance upon the information contained in this document. Copyright © 2017 LawPlus Ltd.

LAWPLUS 3

•How to Employ and Manage Foreign Labors

office work

construction work

restaurant and other services

•Employment Agreement for Foreign Employees

•Hiring Drivers and Housemaids by Company to Work at Home of Company

Executives

•Employment of Thai and Foreign Labors by Individual Employer

Presentation Topics: Foreign Labor Employment

LAWPLUS 4

• Effective from 19th August 1998

• Amended 5 times; latest amended (No. 6) in 2017

• Minimum rights of employees under the LPA minimum wages (around THB300 to THB310 depending on area)

overtime pay

social security fund membership

workmen compensation fund membership

maximum working hours, etc.

• Severance pay and other entitlements when employee is terminated

• Women and children labors

• Work rules, employees registration and employment documents

• Labor claims

• Employee Welfare Fund

How to Employ and Manage Foreign LaborsLabor Protection Act B.E. 2541 (A.D. 1998) (“LPA”)

LAWPLUS 5

• Effective on and from 23rd June 2017

• Foreigner Employment Administration Policy Committee is established:-

- 20 members from the public sector

- 8 members from the private sector

- to prepare policy and strategy for foreigner employment administration

- to supervise implementation of policy and strategy for foreign employment administration

• Employer who employs unskilled foreign labors from countries which have signed MOU with Thailand must:

- obtain a permission from the Department of Employment (“DOE”)

- place a guarantee with the DOE at THB1,000 per foreign employee (but not more than THB100,000 for all employees)

How to Employ and Manage Foreign Labors Emergency Decree on Foreigner Employment Administration B.E. 2560 (A.D. 2017) (“ED2560”)

LAWPLUS 6

• Foreigner who works in Thailand without a work permit is subject to imprisonment up

to 5 years or a fine form THB2,000 up to THB100,000 or both (Section 101)

• Employer who hires a foreigner without a work permit or hires a foreigner to work on a

prohibited or restricted work is subject to a fine between THB400,000 and THB800,000

per employee (Sections 102 and 122)

• Foreigner who works on a necessary and urgent work basis without notifying the DOE

is subject to a fine of THB20,000 to THB100,000 (Section 119)

• Enforcement of Sections 101, 102, 119 and 122 is deferred by the NCPO Order No.

33/2560 dated 4th July 2017 until 1st January 2018

How to Employ and Manage Foreign Labors Emergency Decree on Foreigner Employment Administration B.E. 2560 (A.D. 2017) (“ED2560”)

LAWPLUS 7

• Foreigner cannot work and cannot be employed to work in 39 prohibited occupations and professions, such as

- labor work (except for (i) working in fishing boats or (ii) foreigners who have been permitted to work under the MOU as legal immigrants with a visa under the immigration law)

- agriculture, animal husbandry, forestry or fishery work (except for work requiring expertise, specialized work, farm supervision work or labor work in fishing boats)

- supervising, auditing or providing services in accounting work (except for internal auditing on occasions)

- brokerage or agency work (except for broker or agency work in international trade)

- civil engineering, concerning design and calculation, organization, research, project planning, testing, construction supervision or advising (except for work requiring special expertise)

- legal service, litigation service (except for arbitration work or arbitration defensive work governed by foreign laws).

• Foreigner can work or be employed to work in non-prohibited occupations and professions upon obtaining a work permit (Section 59 of the ED2560)

How to Employ and Manage Foreign Labors Royal Decree on Occupations and Professions Prohibited to Foreigners B.E. 2522 (A.D. 1979) (“RD2522”)

LAWPLUS 8

• Foreigners are prohibited to work as office clerks and secretaries

• Employer must:- have a registered capital of not less than THB2,000,000 per each foreigner

- employ 4 Thai employees per 1 foreigner

• Foreign employee must:- obtain a Non-Immigrant Visa “B” under the Immigration Act B.E. 2522 (A.D. 1979) as

amended) by Immigration Act (No. 3) B.E 2542 (A.D.1999)

- obtain a work permit under the RD2522 and the ED2560

- report himself or herself to the Immigration Office:

– every 90 days period

– within 15 days prior to the end of the 90-day period or within 7 days after the end of the 90-day period

– in person or by attorney or by courier

How to Employ and Manage Foreign Labors Office Work

LAWPLUS 9

• Only unskilled foreign labors from countries which have signed MOU with Thailand are allowed to work at construction sites

• Employer must: obtain permit to hire from the DOE

place a guarantee of THB1,000 per foreign employee but not more than THB100,000 for all employees

• Employee must: obtain a NonImmigrant Visa “LA” for labors from countries which have signed MOU

with Thailand

obtain a work permit

report to the Immigration Office:

(1) every period of 90 days

(2) within 15 days prior to the end of the 90day period or within 7 days after the end of the 90day period

(3) in person or by attorney or by courier

How to Employ and Manage Foreign Labors Construction Work

LAWPLUS 10

•Work at restaurant is not prohibited to foreigners

•Other services are mainly prohibited to foreigners

•Employer must:have a registered capital of not less than THB2,000,000 per each foreign employee

hire 4 Thai employees per 1 foreigner

•Employee must:obtain a NonImmigrant Visa “LA” for labors from countries which have signed MOU with Thailand

obtain a NonImmigrant Visa “B” for labors from other countries

obtain a work permit

report to the Immigration Office:

(1) every period of 90 days

(2) within 15 days prior to the end of the 90day period or within 7 days after the end of the 90day period

(3) in person or by attorney or by courier

How to Employ and Manage Foreign Labors Restaurant Services and Other Services

LAWPLUS 11

• Must fully comply with the LPA and other applicable laws

• Can be made in Thai and foreign language (English) or bilingual

• Can be signed by only the employee or both parties

• No need to be filed with any government office

• Should include at least important clauses on the followings:

(1) job descriptions

(2) probation period

(3) working hours

(4) entitled holidays and sick leaves

(5) remuneration and others welfare benefits

(6) confidentiality

(7) noncompetition and restrictive covenants

(8) intellectual property rights

(9) termination and extension of employment

(10) miscellaneous, i.e. severability, amendment, counterpart, governing law and court jurisdiction, etc.

Employment Agreement for Foreign Employees

LAWPLUS 12

• Legally and contractually possible without restriction for Thai employees

• Drivers and housemaids are protected as prohibited occupations under the RD2522

• Foreign housemaids from countries which have signed MOU with Thailand are allowed but they need to obtain visa and work permit

• Drivers and housemaids are entitled to at least

minimum wages (THB300 to THB310 depending on the province in which they work)

maximum working hours (8 hours per days but not more than 48 hours per week)

overtime pay

holiday pay



• Place of work must be clearly specified at home of executives, not at company office

• Signing an employment agreement is not required but recommended

Hiring Drivers and Housemaids by Company to Work at Home of Company Executives

LAWPLUS 13

• Thai and foreign labors are protected under the LPA

• Individual employer can be a Thai person or a foreigner

• Employment Agreement is not required but recommended

• Foreign individual employer must obtain necessary licenses if he operates business as a sole proprietor

• Under the LPA, Thai and foreign labors hired by individual employer are entitled to minimum wages (THB300 to THB310 depending on the province in which they work)

maximum working hours (8 hours per days but not more than 48 hours per week)

overtime pay

holiday pay



• Foreign labors must obtain NonImmigrant Visa “LA” for labors from countries which have signed MOU with Thailand

NonImmigrant Visa “B” for labors from other countries

work permit from the DOE

Employment of Thai and Foreign Labors by Individual Employer

LAWPLUS

Unit 1401, 14th Floor, 990 Abdulrahim Place, Rama IV Road, Bangkok 10500, Thailand

Tel. +66 (0)2 636 0662, Fax +66 (0)2 636 0663

Room 517, Yangon International Hotel, No. 330 Corner of Ahlone and Pyay Roads, Dagon Township, Yangon, Myanmar

Tel. +95 9 505 6667 and Tel. +95 92 6111 7006

www.lawplusltd.com

Contacts:

Kowit Somwaiya, Managing [email protected]

Prasantaya Bantadtan, [email protected]

Naddaporn Suwanvajukkasikij, [email protected]

Foreign Labour Employment

Law

Transcript of Foreign Labour Employment