With the current situation in Samut Sakhon Province, which has large numbers of new infections among migrant workers, it is expected that the 6 provinces around Samut Prakarn Province including Bangkok, Samut Prakan, Nonthaburi, Nakhon Pathom, Ratchaburi, and Samut Songkhram will be affected. This situation is a threat to public order and safety, public health security and Thailand’s economic and social system affecting the employers to temporarily pause their businesses and the insured employees who contributes the funds to the social security system will be unemployed and unpaid.  

The Ministry of Labour then has proposed a Draft Ministerial Regulation on Unemployment Benefits in the Event of Force Majeure arising from the Outbreak of Dangerous Diseases under the Communicable Disease Act B.E. …. (the “Draft Ministerial Regulation”) to the Cabinet in order to alleviate suffering of insured employees affected by the outbreak of COVID-19 and it was approved by the Cabinet on 22 December 2020.

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Summaries of the Draft Ministerial Regulation are as follows:

  1. The Draft Ministerial Regulation was effective retrospectively from 19 December 2020 onwards.
  2. A definition of “Force majeure” will include “A danger arising from the outbreak of dangerous communicable disease under the Communicable Disease Act, which creates effect to the public and to the extent that the insured employees are unable to work or the employers are unable to operate their businesses normally.
  3. In case that force majeure event occurs and the government and authorities order to lock down the area in order to prevent spreading out of outbreak of dangerous communicable disease under the Communicable Disease Act in which it creates non-payment of wage to the insured employees, such insured employees will be entitled to receive the benefit at the rate of 50% of their dairy wage rate. Such benefit will be payable during the whole period of time that government and authorities order to lock down, but within one calendar year, will not be more than 90 days for each occurrence of force majeure event.

As the numbers of foreign workers have been increased steadily in Thailand. However, the system and personnel to handle on the matters related to such foreigner works such as issuing of visa and work permit, notification of such foreign workers and related procedures have not been suitable, up-to-date and it also creates time-consuming to all related persons.

The Cabinet then has resolved in principle for the development of foreign worker management services as proposed by the Ministry of Labour by allowing an outsourcing service provider to manage and handle on the same. This can improve the foreign worker management services to be more systematic, convenient, modern and verifiable. Brief details of development of such foreign worker management services are as follows:

  1. Using an e-WorkPermitOS system instead of customary services for all processes in relation to issuing a work permit. It can be done via a smartphone or tablet by using mobile application.
  2. Arranging for 45 places for the e-WorkPermitOS information Center.
  3. Issuing the work permit in a plastic card and digital forms having QR-code and barcode.
  4. Providing services for 24 hours a day.
  5. Accumulating all data to be in a single database.
  6. Verifying all processes through single database.

The Ministry of Labour then is required to work together with all related authorities and then repropose this development of foreign worker management services to the Cabinet for its final approval.

Author: Panisa Suwanmatajarn and Parita Preamsawat

On 25 June 2019, the cabinet approved in principle for 3 draft Ministerial Regulations (“Draft Ministerial Regulations”) issued by virtue of the Foreigners Working Management Emergency Decree (“Emergency Decree”) (No.1) B.E. 2560 (2017) and its amendment (no. 2) B.E. 2561 (2018) as proposed by the Ministry of Labor and that those Ministerial Regulations will be sent to the Council of State for its review and consideration. After that the Draft Ministerial Regulations will be returned to the cabinet for its final approval before becoming enforce. Brief details of such Ministerial Regulation are as follows:

  1. The Draft Ministerial Regulations specifying rules, procedures and conditions for applying for work permit, issuing of work permit, applying for renewal of work permit notifying of extension of time and notifying of issuance of notification of work permit.
  2. Draft Ministerial Regulations determining qualifications of foreigners who are able to obtain the work permit are as follows:
    • Individuals who do not hold Thai nationality;
    • Individuals who do not have insanity or mental infirmity;
    • Individuals who have never been sentenced by a final judgment to imprisonment under the immigration-related law or the management of foreigner working law within 1 year before the date of applying for the work permit; and
    • Individuals who have never been being illness with the certain diseases: leprosy, active tuberculosis, lymphatic filariasis in the presence of symptoms that are disgusting to society, addiction disease, alcoholism or syphilis in phase 3.
  3. The Draft Ministerial Regulations prescribing fees related to obtaining the work permit, including work permit fee, renewal fee, annual fee and substitute of work permit, for foreign workers.

Once the 3 Draft Ministerial Regulations have been promulgated, it will provide clearer conditions and more consistent in regard to the procedures, qualifications and fees in requesting for the work permit for foreign workers in Thailand.

Author: Panisa Suwanmatajarn and Anon Chanrueng

Foreign Business Act B.E. 2542 (1999) (“FBA”) is a master law which is aimed to restrict foreigners who would like to invest and conduct their business in the country. There are 2 key important provisions of the FBA which are 1. definition of a foreigner and 2. types of business that prohibit foreigners from entering into and conduct such business in a form of lists as annexed to the FBA. Nowadays, the Thai Government are pushing the country to be transformed into Thailand 4.0 model which in that model the policy of Thai Government will include providing privileges in investment promotion for the foreigners who would like to invest and conduct their business in Thailand.

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The current FBA which has been in force for a considerable period of time and also contains certain lists of businesses which those are inconsistent with circumstances in regard to the economy, investment and international trade of the present time. Therefore, on 21 May 2019, the Cabinet approved in principle a draft Ministerial Regulation in Regard to Service Businesses Requiring Not to Obtain Permission by Foreigners B.E. …. (“Draft Ministerial Regulation”) proposed by the Ministry of Commerce.

According to Section 9 of FBA, it provides that “the Commission shall consider and review categories of businesses in the lists annexed hereto at least once every duration of one year as from the date of the entry into force of this law…….”

the Foreign Business Commission examined the service businesses listed in category 3 and were of the view that the three services businesses which are

  1. Service business to provide loan to affiliated companies in the group located in the country
  2. Service business to provide office for rental with utilities for affiliated companies in the group and
  3. Service business to provide consulting service for affiliates companies in the group for certain services, i.e. management, human resources, marketing and information technology which the Foreign Business Commission considered as they do not create adverse effect to the Thai entrepreneurs in competition readiness with foreigners as it is limited in providing services to affiliated companies, reducing the costs of operation among the group and increasing the business efficiency of business units in the national economy.

This Draft Ministerial Regulation will be submitted to the Council of State for its consideration and revision and then returned to the Cabinet for its final approval together with the comments from the Ministry of Finance, Bank of Thailand and Ministry of Digital Economy prior to be enforced.

Author: Panisa Suwanmatajarn and Anon Chanrueng

Thailand currently focuses on driving the economy through innovation and that the government encourages investment on knowledge-based business. Therefore, the Thai government has increased measures in order to persuade highly skilled foreign manpower to work and provide knowledges in the target industries, called S-Curve e.g. smart electronics, medical hub, agriculture and biotechnology and digital. Thereby, a draft Announcement of Labour Ministry Re: Allowing Foreigner as Highly Skilled Expert, Investor, Senior Executive and Startups Entrepreneur Working in the Kingdom under Special Case (“Draft Announcement”) has been prepared by the Labour Ministry.

The significant provisions in the Draft Announcement areas details below:

  • To revoke the Announcement of Labour Ministry Re: Allowing Foreigners as Highly Skilled Expert, Investor, Senior Executive and Startups Entrepreneur Working in the Kingdom without Complying with the Decree on Managing of Foreign Worker B.E. 2560 (2017) dated 29 January 2017; and
  • To specify benefit of the foreigner and it is dependent holding a visa under such Draft Announcement as follows:
    • To allow the foreigner who is a highly skilled expert, investor, senior executive or startups entrepreneur receiving a Non-Immigrant Visa under a special case and working in the Kingdom without having a work permit subject to the regulation of Foreign Workers Administration.
    • A spouse of such highly skilled expert, investor, senior executive or startups entrepreneur is allowed to stay in Thailand exceeding 1 year. Moreover, their child having the age above 18 years old can also work in the Kingdom throughout the period of being allowed to stay in the Kingdom.

Currently, the Draft Announcement was approved in principle by the Cabinet on 5 March 2019 and being submitted to the Office of Council of State for consideration and revision. Then, such Draft Announcement will be returned to the Cabinet for its final approval and published in the Government Gazette for its enforcement.

Author: Panisa Suwanmatajarn and Onnicha Khongthon