Tag: Foreign Working

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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.

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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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Thailand – New Government with its Executive and Legislative Policies to Promote Foreign Direct Investment

The new government, which has taken office following a nine-year ruled by General Prayuth Chan-o-cha, signifies Thailand’s return to democracy after the 2014 military coup. Under the leadership of the Pheu Thai Party, led by Prime Ministerial candidate Srettha Thavisin, the government has set forth a visionary agenda, with a primary focus on promoting foreign direct investment to invigorate the country’s GDP.

To achieve this overarching objective, the government has implemented a multifaceted strategy that encompasses both executive and legislative policies. This strategy revolves around three core principles: reducing expenses, increasing income, and expanding opportunities, all designed to enhance Thailand’s overall business environment and attractiveness to foreign investors within the ASEAN region.

One of the government’s primary measures is an extensive economic stimulus program. This program aims to reduce the cost of living and production costs in the country. Key components include significant reductions in electricity prices, petrol prices, personal consumption loan interest rates, and suspension of debt payments for farmers. These measures are strategically designed to enhance the appeal of Thailand as a destination for foreign investment by improving the overall cost structure for businesses operating within its borders.

Furthermore, the government is focusing on boosting the Electric Vehicle (EV) industry as a driver of foreign investment. To achieve this, it plans to reduce tax exemptions for imported EV cars, incentivizing domestic EV manufacturing. By nurturing this emerging sector, Thailand seeks to enhance its industrial and technological capabilities, making it a compelling option for foreign investors looking to capitalize on the growing EV market.

The government has also implemented visa policies to promote foreign investment and tourism. Passport holders from China, Kazakhstan, Taiwan, and India already benefit from a free-visa policy, with plans to extend this privilege to other nationalities in the near future. Such policies foster an environment conducive to foreign business travel and investment in various sectors.

Furthermore, the government is taking steps to upgrade the country’s infrastructure. The proposed land bridge project, connecting the Andaman Sea to the Gulf of Thailand, will significantly enhance international trade routes, positioning Thailand as a pivotal transportation hub in the Indo-Pacific region. This infrastructure investment opens up opportunities for foreign investments in logistics and related industries.

Lastly, the government plans to introduce legislation to fund the 10,000 THB digital wallet project. This initiative will provide digital currency to adults with monthly incomes below 70,000 THB and savings below 500,000 THB. Any unused funds will be channeled into the National Competitiveness Enhancement for Targeted Industries Fund, further enhancing economic competitiveness and making Thailand an attractive destination for foreign investment.

In conclusion, the government’s comprehensive approach to economic development, with a focus on improving the business environment, supporting key industries such as EV manufacturing, and encouraging foreign investment, positions Thailand for substantial growth and prosperity. If effectively implemented, these policies have the potential to transform Thailand into a regional economic powerhouse.

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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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.

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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.

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Time Extension for Operating of Liquor Production Facilities

To facilitate the liquor production licensees who may not construct liquor factories, install machinery and equipment used for liquor production or initiate a liquor production on time as set out in the licenses, the Excise Department has drafted a Notification of the Excise Department on Determining Causes of Necessity, Procedures for Requesting and Permission to Extend the Construction Period of a Liquor Factory, Installation of Machinery and Equipment Used for Liquor Production and the initiating of Liquor Production (“Notification”) for the purpose of extending the period of time for Initial liquor production.

blue plastic pail

This Notification applies to the liquor production licensees who may not be able to construct liquor factories, install machinery and equipment used for liquor production or initiate a liquor production on time as indicated in the licenses due to (1) natural disaster, (2) laws, notifications or regulations issued by government agencies, (3) waiting for permission from other agencies or (4) other necessary causes with explicit evidence. Those liquor production licensees may submit an application requesting for an extension together with relevant documents before the period specified in a liquor production license has lapsed. The application may be submitted to an Excise Official for their consideration at the Area Excise Office or Branch Area Excise Office in the area where the liquor factory is located. After consideration, the Excise Official will render its order as follows:

  • In the case that the Excise Official considers the submitted application and its supporting documents are incorrect or incomplete and such issues can be amended at that time, the Excise Official shall notify the applicant to make an amendment immediately. Or else, if such issues cannot be amended at that time, the Excise Official shall record such issues and list of additional documents to be submitted together with imposing a period of time as deemed appropriate so that the applicant may amend or submit additional documents within such period of time.
  • In the case that the Excise Official considers that the submitted application and its supporting documents are correct and complete or the applicant has corrected issues or submitted additional documents as ordered within the imposed period of time, the Excise Official shall report to either the relevant Area Excise Office or the Director of the Bureau of Standard and Tax Collection 1 for further consideration.
pile of gray metal drumt inside factory

Furthermore, kindly be noted that this Notification is only a draft that has not yet been published in the Royal Gazette. Hence, it is not enforced at the moment. Upon approval by all relevant authorities as required by laws and published in the Royal Gazette, it shall repeal the Notification of the Excise Department on Determining Causes of Necessity, Procedures for Requesting and Permission to Extend the Construction Period of a Liquor Factory, Installation of Machinery and Equipment Used for Liquor Production and Initiating of Liquor Production issued on December 1st, 2554 (2021) and this Notification shall become enforced since the date of publication in the Royal Gazette.

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.

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Special Permission for Certain Classes of Aliens to Stay in the Kingdom for Highly Skilled Manpower, Investors, Executives and Startups Entrepreneurs

On 27 September 2022, the Cabinet approved in principle the draft Notification of Ministry of Interior on Special Permission for Certain Classes of Aliens to Stay in the Kingdom for Highly Skilled Manpower, Investors, Executives and Startups Entrepreneurs (No…) B.E. (….) (“Notification”) which was proposed by the Ministry of Interior. The purpose of this draft Notification is to add the numbers of targeted industries under the Smart Visa Program from 13 to 18 industries. This will attract and gather highly skilled manpower, investors, executives and startups entrepreneurs capable of developing the targeted industries to apply for the Smart Visa in order to bring in technology and knowledge to the Kingdom.

Additional targeted industries are as follows:

  1. National defense industry;
  2. Industries that facilitate the circular economy directly and significantly, for example, fuel production from waste, water resources management, etc.;
  3. Environmental management and renewable energy;
  4. Technology innovation and startup ecosystem management; and
  5. International business center.

Those who have obtained this type of visa are eligible for several benefits such as exemption from applying for a work permit, reporting himself/herself to the Immigration Bureau once a year instead of every 90 days, and unlimited travel back into the Kingdom (Re-entry permit). Furthermore, the spouse and legitimate child have the same right to stay and work as the primary visa holder. Therefore, those involve in this matter should be aware of this draft Notification for expanding opportunities for the growth of their industries.

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Extension of the Period for Permission of Certain Groups of Aliens to Stay in the Kingdom of Thailand as a Special Case

On 20 September 2022, the Cabinet has approved a draft “Notification of the Ministry of Interior regarding the Extension of the Period for Permission of Certain Classes of Aliens to Stay in the Kingdom of Thailand as a Special Case” which was proposed by the Ministry of Interior.

This notification is intended to stimulate the tourism industry in Thailand and the tourist spending during their stay in the Kingdom of Thailand in order to restore the economy in regard to the tourism industry and remedy the impact of the epidemic Coronavirus Disease 2019 (COVID-19) situation.

five women sitting on tree trunk

This notification was issued by virtue of Section 17 of the Immigration Act B.E. 2522, with important principles of extending the period of permission for certain types of aliens to stay in the Kingdom of Thailand as a special case as follows:

  1. For aliens who entered the Kingdom of Thailand temporarily for tourism purposes under Article 6, paragraph 2 of the Ministerial Regulations prescribing Rules, Procedures, and Conditions for Inspection, Exemption and Change of Type of Visa B.E.2545 (2002) (“Ministerial Regulations”), i.e.aliens who apply for a visa at the immigration checkpoint or visa on arrival, are permitted to stay in the Kingdom of Thailand not exceeding 30 days.
  2. Aliens holding a passport of countries whose government has entered into an agreement with the Thai government in regard to visa exemption regarding the period of stay of not exceeding 30 days according to Article 13(1) of the Ministerial Regulations are permitted to stay in the Kingdom of Thailand not exceeding 45 days.
  3. Aliens entering the Kingdom of Thailand for temporary who are exempted from visa type Por. 30 according to Article 13(3)(a) of the Ministerial Regulations are permitted to stay in the Kingdom of Thailand for a maximum period of 45 days.

This notification will be enforced from 1 October 2022 to 31 March 2023, in order to encourage visitors to Thailand and increase tourist spending. This will help to restore the economy in regard to the tourism industry and remedy the impact of the epidemic COVID-19 situations.

Author: Panisa Suwanmatajarn, Managing Partner