Tag: employment

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Subordinate Legislations under the Foreigners Work Management Emergency Decree

Love has long been a powerful force that transcends boundaries and unites people from diverse backgrounds. In recent years, the LGBTQ+ community has grown significantly, with more individuals feeling empowered to come out and live their truth. Many countries around the world have recognized the importance of supporting the LGBTQ+ community and have amended their laws to allow for same-sex marriage. However, Thailand, despite being known as an LGBTQ+ friendly country, has yet to pass such legislation.

Over the years, the Thai parliament has engaged in several debates regarding marriage equality and civil unions. Unfortunately, all proposed bills have failed to be enacted, leaving the LGBTQ+ community without the legal recognition they deserve. However, there is a glimmer of hope on the horizon. In a recent development, the Thai cabinet has approved the principle of amending the civil and commercial code bill, proposing marriage equality.

The essence of this amendment lies in the redefinition of the term “couple” to include people of any gender. This groundbreaking change aims to grant homosexual couples the same fundamental rights as their heterosexual counterparts. These rights include the ability to claim compensation in the event of a breach of betrothal or infidelity, the right to dissolve a marriage, and equal minimum age requirements for both heterosexual and homosexual couples.

man in black suit sitting on chair beside buildings

While this amendment marks a significant step towards marriage equality in Thailand, it is important to recognize that it is merely the beginning. Homosexual couples have long been living together as families, yet they continue to face a lack of fundamental rights. These rights encompass crucial aspects such as the ability to make decisions regarding medical care, joint management and control of property, and inheritance rights.

Although the principle of amending the civil and commercial code bill has only been approved by the cabinet, it is a promising start. The next step will be to propose this amendment to the House of Representatives, where further discussions and deliberations will take place. If the bill successfully navigates this process, it will pave the way for a more inclusive and egalitarian society in Thailand.

The potential impact of this amendment cannot be understated. It signifies a fresh start for real equality, ensuring that love knows no boundaries and that all individuals, regardless of their sexual orientation, have the opportunity to experience the joys and responsibilities of marriage. As Thailand takes this important step towards marriage equality, it sets an example for other nations to follow, fostering a world where love truly knows no bounds.

Author: Panisa Suwanmatajarn, Managing Partner.

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A Proposal for the Reform of the Foreigners’ Working Management Emergency Decree B.E. 2561: Enhancing Labor Management in Thailand

Introduction:

The Foreigners’ Working Management Emergency Decree B.E. 2561 (2018) (“Decree”) was enacted to establish an integrated system for managing foreign laborers in Thailand. While it has successfully facilitated legal immigration for foreign workers seeking employment in various sectors of the economy, there are challenges that need to be addressed.

This article presents a proposal to amend the Decree, aiming to enhance flexibility and address critical issues such as labor shortages, ultimately contributing to the stability of the Thai economy.

Challenges and Proposed Amendments:

The current Decree prohibits employers operating as labor contractors from directly bringing in foreign workers for employment purposes. Although this restriction was intended to regulate foreign labor, it has inadvertently created challenges for businesses striving to meet their workforce demands efficiently. To address these challenges, the proposed amendments seek to introduce changes that would allow labor contractors to bring in foreign workers from countries with established Memorandum of Understanding (MOUs) with the Thai government for direct employment. Additionally, the proposed amendments aim to remove penalties associated with the original decree’s prohibition, fostering a more lenient and adaptable system.

five women sitting on tree trunk

Benefits and Impact:

The proposed amendments advocate for a paradigm shift by permitting businesses operating as labor contractors to directly employ foreign workers. This change is expected to streamline the hiring process and provide a practical solution to address labor shortages in various sectors. By eliminating penalties related to the original and current Decree, the proposed amendment promotes a more open and flexible system, incentivizing employers to explore international labor options without fear of legal repercussions.

The primary goal of the proposed amendment is to address persistent labor shortages faced by various industries in Thailand. By allowing labor contractors to bring in foreign workers, the amendment aims to enhance the stability of the Thai economy and attract increased foreign direct investment. This strategic move aligns with the evolving needs of the economy and positions Thailand as an attractive destination for both skilled and unskilled foreign workers.

Anticipated Results:

The proposed changes are anticipated to contribute significantly to the stability and growth of the Thai economy. By providing a practical solution to labor shortages, industries will be able to operate more efficiently, ultimately contributing to overall economic growth. Moreover, increased flexibility in hiring foreign workers is expected to attract more foreign direct investment. Businesses, assured of a streamlined labor recruitment process, are likely to view Thailand as an attractive destination for investment and expansion.

woman sharing her presentation with her colleagues

Conclusion:

The proposed amendment to the Decree represents a strategic and forward-thinking approach to labor management in Thailand. By embracing flexibility and responsiveness, the country can not only address immediate challenges related to labor shortages but also position itself as a dynamic player in the global economy, attracting foreign workers and investors alike. This reform signifies a commitment to progress and economic development, ensuring that Thailand remains a competitive and thriving nation in the international arena.

Author: Panisa Suwanmatajarn, Managing Partner.

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Enhancing Rights and Welfare: The Freelance Promotion and Protection Bill

Introduction

In the 21st century, the advent of the digital age has transformed the global landscape, leading to an increased reliance on electronic devices and digital platforms for everyday survival. This shift is especially prominent in major Asian cities like Bangkok, where traditional cash transactions are being replaced by the prevalence of digital payments such as credit cards, debit cards, and QR codes. Alongside this digital revolution, the rise of applications like Grab, Bolt, and Robinhood has introduced a new paradigm of work facilitated by independent contractors or partners, offering services ranging from food delivery to transportation.

The precarious situation of independent contractors despite their indispensable role, independent contractors, commonly known as partners, often find themselves in a precarious situation. Although,

their work may resemble that of employees, they are not granted the same level of protections provided by traditional employment laws. To address this pressing issue, the Ministry of Labour has introduced the draft Freelance Promotion and Protection Bill, aiming to establish a distinct category for these contractors, recognizing them as semi-independent professionals or semi-freelancers.

Safeguarding semi-freelancers

The Bill seeks to protect semi-freelancers from arbitrary termination by prohibiting business operators from ceasing to provide work during the resolution of complaints or in case of serious allegations. This provision aims to provide a safety net for semi-freelancers, ensuring a fair process before any cessation of work.

Regulating agreements for transparency and fairness

The Bill acknowledges the need for transparency and fairness in agreements between business operators and semi-freelancers. By regulating these agreements, the legislation aims to create a balanced working relationship that respects the rights and interests of both parties.

Enhancing well-being

Through a fund to enhance the well-being of semi-freelancers, the Bill proposes the establishment of a fund to which members can contribute. This fund would provide benefits such as access to credit unions, insurance coverage, and other rights, offering a social security net for those engaged in freelance work.

Arbitration mechanisms for dispute resolution

The Bill empowers semi-freelancers with the right to arbitrate labor disputes through a tribunal, arbitrator, or the labor court. This ensures a fair and impartial resolution mechanism that considers the specific nature of freelance work.

Strengthening collective bargaining power

Recognizing the collective strength of freelancers and semi-freelancers, the Bill promotes the formation of worker’s unions. This empowers freelancers to engage in collective bargaining, fostering a fairer working environment and ensuring that their voices are heard.

Establishing a dedicated committee

The establishment of a Freelance Promotion and Protection Committee underscores the commitment to safeguarding the rights and promoting the well-being of freelancers. This committee will serve as a dedicated body to address emerging issues and ensure the effective implementation of the Bill.

In conclusion, the Bill represents a crucial step towards acknowledging and addressing the unique challenges faced by freelancers and semi-freelancers in the evolving digital landscape. By providing legal recognition, ensuring job security, and establishing mechanisms for dispute resolution and collective bargaining, the Bill aims to foster a more equitable and supportive environment for those engaged in freelance work. Ultimately, this legislation endeavors to build a robust social security net, promoting the rights and well-being of freelancers and semi-freelancers in the contemporary workforce.

Author: Panisa Suwanmatajarn, Managing Partner.

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Increasing Medical Compensation for Employees

Currently, but soon will be modified, if an employee gets injured or becomes ill during/because of the work, the employer is responsible to pay the actual compensation with a capped amount for an employee to have proper and necessary medical treatment.  

The cabinet has recently approved a draft ministerial regulation regarding the medical expenses rates to be paid by employer proposed by the Ministry of Labor.  The draft ministerial regulation is for increasing medical compensation to be in line with changing of economic and social conditions and to help employees access increased medical benefits. It will reduce the trouble and cost burden for employees.  

crop cheerful multiethnic colleagues celebrating victory in office

The draft ministerial regulation requires employers to increase the rate of healthcare expenses covered by social security from the previous amount of 50,000 baht to 65,000 baht. Furthermore, there are adjustments made to the conditions of the injuries to receive compensation with the maximum amount payable by the employer not exceeding 100,000 baht, from severe head injuries and requiring craniotomy to severe head injuries suffered by employees. This draft ministerial regulation also covers patients with trauma until birth state of unconsciousness or paralysis with high expenses which can be qualified according to this ministerial regulation, such as injuries with the following characteristics or treatment.

  1. Severe injury to the head causing inability to perform daily activities normally for more than 20 days.
  2. In case of severe head injury but may not require surgery or may not be able to do surgery, such as a skull fracture that causes bleeding in the brain.
  3. In case of fall from a height causing multiple broken ribs, a small amount of blood in the chest, slight shortness of breath and/or non-surgical with cerebral hemorrhage but without surgery staying in the Intensive Care Unit (ICU) for 3 nights with abdominal bleeding and no surgery needed.

Author: Panisa Suwanmatajarn, Managing Partner.

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Allowing Workers from Cambodia, Laos, Myanmar, and Vietnam to Temporarily Work in Thailand

Because of transportation restrictions and barriers, the number of foreign workers who will come to work in Thailand does not correspond to the demand for employment in Thailand. The Minister of Labor, as approved by the Cabinet Resolution on July 5, 2023 (B.E. 2566),  has made the notification of the Ministry of Employment to specifically allow the alien workers from Cambodia, Laos, Myanmar, and Vietnam to temporarily work legally in Thailand by virtue of Sections 6, 14, and 63/2 of Foreigners Working Management Emergency Decree B.E. 2560 (A.D. 2017), provided that the Alien Workers are within the meaning of the above Cabinet Resolution. The essences of this notification are following:

  1. The employer can send the name list of the requesting foreign worker (“Name List”) on an electronic system as the main system. However, if the electronic system is unable to process it, the employer must submit it to the employment office where the employer’s office is located.
  2. While employers submit the Name List and a recent foreigner’s photo to the Department of Employment by July 31, 2023 (B.E.2566), foreign workers are permitted to temporarily work without a work permit. After approval by the Department of Employment, the foreign workers shall take the Name List as evidence to work in Thailand until July 31, 2023 (B.E.2566). 
  3. The permitted foreign workers can work with the employers on any kind of work unless there is a prohibition under Section 7 of Foreigners Working Management Emergency Decree B.E. 2560 (A.D. 2017). Moreover, the notification of the Ministry of Labor re: prescription of the prohibited occupation for foreigners and the announcement of the Department of Employment re: requirement of working as labor and front-office sale with employer apply for such workers as well.
  4. The employers are exempt from informing the registrar regarding the name, nationality, and the job description of the foreigner within 15 days from the day of employment under Section 13 of Foreigners Working Management Emergency Decree B.E. 2560 (A.D. 2017).
  5. Submitting the Name List is regarded as the employees having informed the registrar under Section 64/2 of Foreigners Working Management Emergency Decree B.E. 2560 (A.D. 2017).
  6. The permit to work without a work permit for foreign workers by virtue of this notification has terminated either (1) when the foreign workers do not comply with this notification or (2) when the permission to stay in Thailand terminates under the Immigration Act B.E. 2522 (A.D. 1979).

This notification intends to assist illegal foreign workers to work in Thailand and become legitimate by making it easier for employers and employees to submit the Name List on the electronic system. This notification has been effective since June 6, 2023 (B.E.2566), and employers who hire foreign workers without a work permit must submit the Name list to the Department of Employment by July 31, 2023 (B.E.2566) to provide the temporary legal duration of foreign workers.  

Author: Ms. Panisa Suwanmatajarn, Managing Partner.

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A New Labor Law Established the Rights and Obligations to Work-From-Home

As we are all aware that the working routines of people nowadays have shifted to a new normal of work-from-home arrangements, rendering the Thai Labor Protection Act B.E 2541 (1998) incompatible with how people work today. As a result, on 19 March 2023, the Labor Protection Act (No. 8) B.E. 2566 (2023) (“Act”) was announced in the royal gazette, amending thelabor law, and will be enforced within 30 days from the announcement dates, which will be effective on April 18, 2023, with the objective of being in line with today’s working lifestyle.

Section 23/1 has been added to the Act and it contains 4 significant clauses as follows:

  1. For the benefits of the employer’s business operation and the promotion of employees’ quality of life and work, the employees can work at home, at residence, or anywhere outside the employer’s office conveniently by using information technology or IT.
  2. In order to work remotely, the employer and employee may execute a written or electronic agreement that may include the following clauses:
    1. The term of the agreement;
    2. The working days, normal working hours, and overtimes;
    3. The rules governing overtimes, holiday, working days and types of leave;
    4. Scope of work and the employer’s supervision; and
    5. Obligations of the employer to provide the necessary working tools or equipment and expenses in relation to the performance of the work.
  3. Unless they have given prior written consent, employees have the right to refuse all forms of communication from their employer or supervisor after a working hour or the end of work as assigned by the employer. This Right to Disconnect follows EU legislation beginning with France in 2017 and spreading to Spain, Ireland, and Italy by the end of 2021.
  4. Employees who work remotely have the same rights as those who work at the office, which means that employers cannot change or reduce benefits if employees do not agree to it.

In conclusion, this Act will not only improve employees’ quality of life and work but will also assist in the resolution of traffic issues and the reduction of energy and fuel consumption. All employees who work remotely should be aware of this Act in order to understand their current rights and responsibilities. The employers should also consider drafting work-from-home agreements with the said employees. Please note that there is no provision regarding the penalty for non-compliance with this Section 23/1 because the government currently intends to support work-from-home policies.

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Title: Special lecture on the topic of Thai labour law organized by the Thai Theatre Foundation (online channel)

Date: 28 June 2023

Participants: Theatre Industry

Lecturer – Labour Law
Panisa Suwanmatajarn
Panisa Suwanmatajarn

As a managing partner of The Legal, Panisa will continue to provide that same degree of excellence using her considerable knowledge and experience to the benefit of our clients and the international community.

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More information, please visit: Theatre Management Workshop — Thai Theatre Foundation

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Visa Extension for Foreign Workers

The cabinet has recently approved the guideline for managing foreign working after February 13th, 2023, as proposed by the Ministry of Labor in collaboration with the Ministry of Interior, Ministry of Public health, Royal Thai Police, and Department of Provincial Administration. The guideline below will be applied to foreign workers whose work permits expire on or before February 13th, 2023, by allowing the following foreigners to stay in Thailand as a special case until May 15th, 2023.

1. Foreigners who have completed and submitted an application for a renewal of their work permit and paid for the application fee and renewal work permit fee within February 13th, 2023  and that 1.) those foreigners were granted a visa or permitted to temporarily stay in Thailand until February 13th, 2023 but have not yet applied for a temporary stay in Thailand until 2024 or 2025 or have a gradually expired passport since February 14th, 2023 onwards or 2.) those foreigners who were granted a visa or permitted to temporarily stay in Thailand until February 13th, 2023 and have been granted to stay temporarily in Thailand until 2024 or 2025 or have a passport expired from February 14th, 2023 onwards.

According to the Notification of the Ministry of Labor issued by virtue of Section 14 of the Royal Ordinance on the Management of Foreign Workers Employment B.E. 2560 (2017) and its amendments, foreigners as mentioned above in Item 1 will be allowed to work in Thailand until February 13th, 2024, or 2025 as the right is granted.

women in sitting on floor rug

2. Foreigners, who have incompleted but  submitted an application for a renewal of their work permit and paid the application fee within February 13th, 2023 under the circumstances of 1.)  those foreigners do not have a passport or document in lieu of a passport, 2.) those foreigners who have a passport or document in lieu of passport but fail to extend their visa or 3.) those foreigners whose status is not legal but whose employers have applied for their work permits on their behalf and have already paid the fee in the process of biometrics collection prohibited disease diagnosis, will be granted temporary visas until May 15th, 2023. In case they wish to continue working in Thailand, they will be granted temporary visas and work permits until February 13th, 2024 or February 13th, 2025 as the case may be.

3.  Those foreigners, who have passports or documents in lieu of passports and have been granted visas or have permission to temporarily stay in Thailand but passports or documents in lieu of passports expired before February 13th, 2023, will be allowed to temporarily stay and work until February 13th, 2024, or February 13th, 2025, as the case may be.

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Thailand – Self-Employed Workers Being Protected under a New Legislation

While the popularity of digital platforms is increasing day by day, the employment status of digital platform workers (also known as gig workers, independent contractors or online platform workers) can be a complex issue and can vary depending on the specific circumstances of the work arrangement and the laws of jurisdiction in which the work is being performed.

In some cases, digital platform workers may be considered employees, while in other cases they may be considered self-employed or independent contractors. The determination of employment status can have significant implications for the rights and protections that apply to the workers, as well as for the tax and other legal obligations of the workers and the platforms.

There is often debate and controversy surrounding the employment status of digital platform workers, and different countries and jurisdictions have taken different approaches to define and regulate this type of work.

Self-employed workers are arguably not considered employees and therefore are not protected under traditional labor laws. In most countries, labor laws are designed to protect the rights and interests of employees, who are typically defined as individuals who work for another person or organization in an employment relationship.

woman sharing her presentation with her colleagues

Self-employed workers, on the other hand, are arguably considered to be their own bosses and are not considered employees. They may operate their own business or provide services to clients on a freelance or contract basis. As a result, they are generally not entitled to the same protections and benefits as employees, such as minimum wage, overtime payment, unemployment insurance and compensation.

With the above in mind, workers who work for digital platforms such as riders raised an issue that while they are under the rules of digital platforms, i.e. uniform wearing, working hours, etc.; they are not protected under normal labor law. The Thai Government had looked into this issue and recently, the Cabinet approved in principle to draw up new legislation to protect almost 20,000,000 self-employed workers. Under this new legislation, self-employed workers will be entitled to the following:

  • Basic occupational rights;
  • Safety at work;
  • Social security;
  • Forming an organization;
  • Be promoted, protected and developed towards a good quality of life;
  • Fair work and contract, such as not specifying conditions that cause the work to be rushed with risk or have to work too hard to the point of loss of health;
  • Fair compensation;
  • Remuneration according to the specified rate and period;
  • Welfare and basic insurance;
  • Establishing a fund for workers to have access to the source of funds appropriately;
  • Right to appeal for the investigation and suspension of work; and
  • Right to collective bargaining of workers.

At the moment, the Council of State is considering details of this new legislation. The draft then needs to go through the Parliament which will take a year until it becomes enforce.

Author: Panisa Suwanmatajarn, Managing Partner.

Exemption of Showing Evidence of Medical Certificate as a Person Without Prohibited Diseases and Appearing in Person to Collect Digital Work Permits at the Department of Employment for Long-Term Resident Visa (LTR Visa) Applicants and Holders.

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Exemption of Showing Evidence of Medical Certificate as a Person Without Prohibited Diseases and Appearing in Person to Collect Digital Work Permits at the Department of Employment for Long-Term Resident Visa (LTR Visa) Applicants and Holders.

Recently, the Cabinet has approved in principle the Draft Notification of the Ministry of Labor Re: Permission for Aliens to Work in the Kingdom as a Special Case according to the Measures to Stimulate Economy and Investment by Attracting High Potential Foreigners to Thailand (No. ..) B.E. …. (the “Draft Notification”), which exempts LTR Visa applicants/holders and their spouses from submitting medical certificate showing no prohibitive diseases and appearing in person to collect work permits at the Department of Employment.

man in black suit sitting on chair beside buildings

Before this Draft Notification, the Ministry of Labor has issued the Notification of the Ministry of Labor Re: Permission for Aliens to Work in the Kingdom as a Special Case according to the Measures to Stimulate Economy and Investment by Attracting High Potential Foreigners to Thailand dated 2 June 2022, permitting those who hold LTR Visas and their spouses to apply for work permits in Thailand under the following requirements.

  1. The applicants must be free from prohibited diseases, leprosy, tuberculosis, elephantiasis at the stage that its appearance is disgusting to society, drug addiction, alcoholism and third phase of syphilis.
  2. The applicants must collect a work permit issued by the registrar by themselves in person.
five women sitting on tree trunk

However, the Board of Investment Committee (BOI) has subsequently issued a letter requesting the Ministry of Labor to consider waiving the above two requirements for LTR visa applicants/holders in order to reduce unnecessary steps and facilitate foreigners with high quality and high potential to stay and work in Thailand. After the approval from the Board of Foreign Worker Management Policy, the Ministry of Labor proposed the Draft Notification to the Cabinet which has recently granted their approval in principle of the same.

This Draft Notification allows foreigners and their lawful spouses who have been granted a special case of long-term resident visas (LTR Visa), to apply for  work permits in Thailand with no requirement for showing medical certificates to prove that they are free from prohibited diseases. Moreover, under this Draft Notification, no foreigners under the LTR visas are required from collecting work permits issued by the registrar in person.