Tag: Legal Updates

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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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Proposal for the Repeal of the Act Governing Offenses Arising from the Use of Cheques B.E. 2534 (1991) : Promoting Fairness and Responsibility

Introduction and Necessity for the Bill:

The presentation of this bill to address offenses related to the use of cheques is essential due to the inadequacies of the Act Governing Offenses Arising from the Use of Cheques B.E. 2534 (1991). The proposed bill aims to promote the use of cheques in transactions while ensuring that criminal penalties are proportionate to the severity of the offense. This departure from the current legal framework, which employs criminal sanctions for breach of contract not aligned with constitutional principles and international agreements, underscores the need for this new bill.

Key Provisions of the Bill:

Repeal of the Act Governing Offenses Arising from the Use of Cheques B.E. 2534 (1991):

The proposed bill seeks to repeal the Act Governing Offenses Arising from the Use of Cheques B.E. 2534 (1991) in its entirety, with immediate effect upon proclamation in the Royal Gazette.

close up photo of a wooden gavel

Specific Provisions:

  • Acknowledgment of agreements allowing debtors to repay cheque-related debts and treating them as compromises.
  • Granting judicial authority for the adjudication of cases in civil matters.
  • Expedited release of individuals awaiting trial or serving sentences related to cheque offenses.
  • Guidelines for calculating imprisonment terms in cases involving cheque offenses and multiple legal violations.
  • Appointment of the Minister of Justice to oversee the implementation of the bill.

Benefits to the Public:

The proposed bill aims to address shortcomings in the Act Governing Offenses Arising from the Use of Cheques B.E. 2534 (1991) by aligning penalties with the severity of offenses. It seeks to establish a legal framework that promotes the responsible use of cheques while avoiding criminal implications for breaches of contractual obligations that are not of a grave nature. Additionally, the bill supports the rights and responsibilities of both creditors and debtors, allowing for negotiated repayment plans and expediting legal processes. This ensures a fair legal environment for all parties involved in cheque-related cases.

low section of man against sky

Conclusion:

In summary, the proposed bill aims to rectify the existing legal framework by fostering a balanced and fair approach to cheque-related offenses. By promoting the responsible use of cheques and aligning penalties with the severity of offenses, this bill aims to create a legal environment that encourages financial transactions while ensuring fairness and accountability.

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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PDPC Notification on Security Standards for Personal Data Controllers Exempted from PDPA

The Office of Personal Data Protection Commission (PDPC) conducted a public hearing on the draft PDPC Notification Concerning the Security Standards for Personal Data under Responsibility of Data Controllers exempted from the enforcement of the Personal Data Protection Act B.E. 2562 (2019) (PDPA) (“Notification”). This public hearing occurred from 17 October 2023 to 31 October 2023.

Under Section 4 of the PDPA, certain data controllers, including public authorities, the media, the House of Representatives, the Senate, the Parliament, the courts, and the credit bureau, are exempted from the enforcement of the PDPA. However, Section 4 paragraph 3 of the PDPA mandates that these exempted data controllers must implement security measures to protect personal data.

black android smartphone on top of white book

The draft Notification sets out the security measures that exempted data controllers must adhere to. These measures are similar to those prescribed in the PDPC’s Notification on Security Measures for the Protection of Personal Data B.E. 2565 (2022). The key measures include:

  1. Implementing organizational, technical, and physical measures to safeguard personal data, regardless of its form (physical or digital).
  2. Ensuring the confidentiality, integrity, and availability of personal data.
  3. Extending security measures to servers, software, or applications for storing or processing personal data.
  4. Implementing access control, identity proofing and authentication, need-to-know basis access, user access management, determination of user responsibilities, and personal data audit trails.
  5. Raising awareness about privacy and security among employees or users with access to personal data.
  6. Adopting pseudonymization or encryption measures to minimize the risk of unauthorized or unlawful processing of personal data.

The enforcement of these measures will be closely monitored once the draft Notification becomes enforced.

Author: Panisa Suwanmatajarn, Managing Partner.

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Registration and Renewal of Pharmacopeia: Ensuring Quality, Effectiveness, and Safety

The Food and Drug Administration (FDA) has issued a comprehensive notification outlining the requirements for registering and renewing pharmacopeia. This notification emphasizes the need for rigorous standards and the submission of supporting documentation that certifies the safety, quality, effectiveness, and appropriate usage of human and animal drugs.

Certification Requirements and Document Submission

Applicants seeking pharmacopeia registration must adhere to stringent certification requirements. For human drugs, this entails providing a Summary of Product Characteristics (SmPC) certified by the World Health Organization (WHO) Prequalification Program, overseen by respected Stringent Regulatory Authorities (SRAs) such as the European Commission, EMA, FDA, JPharm, Swissmedic, Health Canada, and other regulatory bodies.

Similarly, applicants for animal drugs must submit documentation certifying the safety and efficacy of their products. This includes the SmPC or product information from certified foreign organizations such as the European Medicines Agency (EMA) through its Veterinary Mutual Recognition Index (VMRI), the Heads of Medicines Agencies (HMA), the UK’s Veterinary Medicines Directorate (VMD), the U.S. Food and Drug Administration, the U.S. Department of Agriculture (USDA), as well as regulatory bodies overseeing animal drugs in Canada, Australia, New Zealand, Japan, various European Union member states (Ireland, Austria, Germany, Spain, France, Italy, Belgium, Netherlands, Hungary, Czech Republic, and Bulgaria), and South American countries like Brazil and Mexico.

Detailed Information and Certification

To ensure transparency and accountability, the notification specifies the essential information that must be included in the certifications. This includes the name of the drug, its strength unit, form, indications for usage, size, usage instructions, applicable species, and drug withdrawal periods.

scientist using microscope

Safeguarding Public Health and Responsible Use of Pharmaceuticals

The Notification plays a vital role in establishing clear and stringent guidelines for the submission of documentation and evidence regarding the quality, effectiveness, and safety of drugs. By adhering to these guidelines, applicants for both human and animal drugs are required to meet rigorous standards and certification requirements. This ensures that public health is safeguarded, and pharmaceutical products are used responsibly.

Facilitating a Robust and Transparent Evaluation Process

By specifying the necessity of certifications and detailing the required information, such as drug names, strength units, indications, and withdrawal periods, this Notification facilitates a robust and transparent evaluation process for extending pharmacopeia registration. Furthermore, it promotes international harmonization efforts by recognizing certifications from reputable organizations and regulatory authorities worldwide.

Upholding the Highest Standards in Pharmaceutical Quality

Ultimately, this Notification serves as a critical tool within the regulatory framework, fostering confidence in the safety and efficacy of pharmaceutical products for both human and animal use. It reflects the unwavering commitment of regulatory bodies to uphold the highest standards in pharmaceutical quality, ensuring that consumers can trust the drugs they rely on for their well-being.

Author: Panisa Suwanmatajarn, Managing Partner.

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Proposed Amendment to the National Competitiveness Enhancement for Targeted Industries Act

The National Competitiveness Enhancement for Targeted Industries Act, B.E. 2560 (2017) (“Act”), which came into force on February 14th, 2017, established the Commission on National Competitiveness Enhancement for Targeted Industries Policies (“Commission”). This Commission, chaired by the Prime Minister and consists of various key government officials. The duty of this Commission is to drive policies aimed at enhancing specific industries.

The Act grants the Commission the authority to make announcements and prescribe targeted industries. The Announcement No. 1/2560 (2017) on the Investment Promotion Rules under the Act was published specifying ten target industries which are the modern automotive industry, smart electronics industry, quality tourism industry, agricultural and biotechnology industries, high-value food processing industry, robot industry, aviation industry, biofuel and biochemical industry, digital industry, and comprehensive medical industry.

The primary objective of this Act is to provide funding for the business operators in the aforementioned targeted industries as determined by the Commission whom a promotion certificate is granted from the Thailand Board of Investment.

However, there is one critical issue in need of amendment related to the funding mechanism as outlined in Section 29 of the Act. Section 29 specifies that the fund comprises several sources, which are (1) an initial capital allocation by the Government (amounting to 10 billion THB), (2) subsidies from the government, (3) donations or gifts of money or property, (4) money or property vested in the fund, and (5) interest or returns on the fund’s assets. Importantly, the Act does not require funds allocated to the C mission to be remitted back to the Treasury as state revenue. This section of the Act does not establish a legal authority for the government to consistently allocate a portion of taxes collected to adequately fund the Commission.

low angle photography of high rise building

The proposed amendment to Section 29 seeks to introduce a new provision, Section 29(6). This amendment would empower the Minister of Finance to allocate funds from increased taxation as deemed necessary. Such an amendment is crucial as it would bolster the financial resources available to the Commission, thereby mitigating the adverse effects of the increased tax rates imposed in accordance with the Global Minimum Tax of 15%. This tax is levied upon large multinational enterprises with revenues of not less than 750 million EUR (equivalent to approximately 28 billion THB) generated within the jurisdictions of the countries that are members of the Organization for Economic Co-operation and Development (OECD), including Thailand.

In conclusion, the proposed amendment to the Act, specifically the inclusion of Section 29(6), is a vital step towards ensuring the sustained growth and competitiveness of the targeted industries. By allowing the Minister of Finance to allocate funds from increased taxation, these industries will receive enhanced assistance in navigating the challenges posed by the Global Minimum Tax and fostering their continued development.

Author: Panisa Suwanmatajarn, Managing Partner.

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Q&A Statement Issued by Revenue Department Clarifying Taxation Applied on Foreign-Sourced Income

The Revenue Department recently issued an Order no. Por.161/2566 on September 15, 2023, with an official announcement published in the Royal Gazette on October 6, 2023 (“Order”). This Order provides important clarifications regarding the taxation of foreign-sourced income, specifically in relation to Section 41 paragraph 2 of the Revenue Code.

To make these clarifications more accessible, the Revenue Department has also released a Q&A infographic statements, accompanied by practical examples addressing various scenarios that taxpayers may encounter, where the key points are summarized as follows for your reference:

(1) Resident Status Rule: The Order interprets Section 41 paragraph 2 of the Revenue Code, which mandates that a resident of Thailand who earns assessable income from sources outside Thailand or from properties located outside the Thailand must pay personal income tax upon bringing such income into Thailand. A resident of Thailand, in this context, is defined as an individual who spends a total of 180 days or more in Thailand within a given year, regardless of whether such individual resides in Thailand continuously throughout the year, if they accumulate a total of 180 days or more in Thailand, they are still considered a resident for tax purposes. For instance, if Mr. A resides in Thailand only during odd-numbered months, totalling 184 days in Thailand, he is still considered a resident.

calculator and pen on table

(2) Non-Resident Income: The Order explains that if a person is not a resident of Thailand during the year in which they earn income, they do not need to include that income in their tax calculations, even if they bring that income into Thailand in a subsequent year when they are a resident. For example, Mr. B earns income from a rental property abroad in a year when he is not considered a resident of Thailand. Then He brings this income into Thailand in a following year when he is a resident, he is not required to calculate such income as assessable income and shall not be subjected to taxation in the year that those money brought into Thailand.

Interest on Bonds and Debentures: The Order also addresses the taxation of income from buying bonds and debentures from outside Thailand. For example, if Miss C purchases bonds from foreign sources in a year when she is a resident of Thailand and subsequently brings the income into Thailand, she is only required to calculate assessable income from the interest on these bonds, not the principal.

Both conditions must be met for the foreign-sourced income to be taxed in Thailand. However, if such income has already been taxed in the source country and the person later brought the said income into Thailand. Thailand and the source country’s double taxation treaties (if any) will govern and determine whether such paid tax in the source country will be used as tax credits or tax exemptions.

It is important to note that this order applies to all taxpayers living in Thailand or planning to reside in the country. Non-compliance with the Revenue Code may lead to criminal penalties, including fines and imprisonment.

This summary provides an overview of the key points covered in the Q&A infographic issued by the Revenue Department regarding the taxation of foreign-sourced income. As these criteria will become enforced on the 1st July 2024, it is essential for the resident taxpayers to understand and adhere to these regulations to avoid penalty consequences.

Author: Panisa Suwanmatajarn, Managing Partner.

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Royal Decree on VAT Reduction under the Revenue Code

Previously, there was a proposed measure to subsidize elderly people by increasing VAT to 10% back to what specified in the Revenue Code and using 3% of the said VAT to assist elderly citizens in coping with their retirement lives. However, there has been no development on this matter since the Royal Decree regarding VAT reduction in accordance with Revenue Code no. 724/2564 (2021) (“Royal Decree”) is still in effect to extend the period of VAT reduction.

Currently, the Ministry of Finance believes that the Thai economy’s development in 2023 and the following year is vulnerable to risk factors such as volatility and economic slowdown, as the Thai economy is still recovering from the epidemic.  Furthermore, the Office of the National Economic and Social Development Council (“NESDC”) discovered that the Thai economy expanded by 1.8 percent in the second quarter, down from 2.6 percent in the first quarter of 2023. There are also the reduction of product exports and increasing of government spending. The business and household sectors are still struggling with rising expenses due to increasing interest rates and living expenses, as well as the implementation of the annual budget for the fiscal year 2024 is taking longer than usual.

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Thus, it is essential to ensure the country’s economic stability, support the recovery of domestic consumer expenditure, allowing the Thai economy to develop as expected, reduce the burden of living costs for the people, and promote trust in the business sector. As a result, the cabinet agreed to prolong the Royal Decree’s timeframe for keeping the VAT rate at 7% (including municipal tax) for another year, from 1 October 2023 to 30 September 2024.  

Author: Panisa Suwanmatajarn, Managing Partner.

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Personal Data Protection for NBTC license holders

The Notification on Protecting User Rights Regarding Personal Data, Rights to Privacy, and Freedom of Communication through Telecommunications Service (“Notification”) was approved by the National Telecommunications Commission. The Notification has been officially published in the Royal Gazette and became effective since September 4, 2023.

Key provisions of the Notification include:

Section 6 stipulates that license holders must obtain separate consent from users before using or disclosing their personal data for purposes other than operating the telecommunications business. License holders must clearly inform users about the scope and objectives of the business, the types of personal information that will be used or disclosed, and any third parties involved. Users must be provided with the option to confirm or revoke their consent. License holders must comply with the conditions specified in the notification and any additional requirements imposed by the NBTC. The language used must be clear and easily understandable, without misleading users about the purpose. Consent may be obtained in writing or through technological means. However, users’ consent or withdrawal should not interfere with their use of telecommunications services.

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Section 7 outlines the details regarding sensitive data, which includes race, ethnicity, political opinions, beliefs, sexual behavior, criminal record, health record, disabilities, union information, genetic data, biological data, and any other data specified in the Personal Data Protection Law that may affect users.

Section 10 addresses the notification requirements for collecting personal data. Generally, license holders must inform consumers during or before collecting their personal data. However, when collecting data from other sources, license holders must notify the data subject within 30 days from the collection date. License holders are not required to notify when the collection does not require consent under Sections 6 and 7.

Section 14 states that if a violation poses a high risk to individuals’ rights and freedoms, license holders must immediately notify the NBTC within 24 hours of recognizing the violation. The notification must include a remediation measure for affected users.

Section 20 mandates that license holders must publicly announce their policies to protect users’ rights to personal information, privacy, and freedom of communication through telecommunications. These policies must be in accordance with the notification and the personal data protection law and should be displayed on the license holders’ website, place of service, application form, and service agreement. Additionally, these policies must be approved by the NBTC.

Given these revisions, it is crucial for all license holders to update their practices to ensure compliance with the personal data protection policies. The protection of personal information is of utmost importance, particularly in the telecommunications industry.

Author: Panisa Suwanmatajarn, Managing Partner.

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Brief Notification for the Digital Platform Services

The Notification of the Electronic Transactions Commission regarding the Nature of the Digital Platform Services Requiring a Notification of the Brief List (“Notification”) was published in the Royal Gazette on 18 August 2023 by virtue of Section 8 of the Royal Decree on the Operation of Digital Platform Service Business that are Subject to Prior Notification B.E. 2565 (2022) (“Royal Decree”) and it will be enforced on 21 August 2023 onwards.

This Notification is aimed to prescribe details of the qualification of the digital platform service providers under Section 8 of the Royal Decree  which is  (1) earning a yearly gross income in Thailand of not more than 1,800,000 Baht as a natural person, or not more than50,000,000 Baht as a juristic person, and (2) Digital platform service providers with no more than 5,000 monthly average users (“Digital Platform Service Providers”) to notify information listed below (a brief list) to ETDA prior to operating their platforms:

  • Platform operator’s information, i.e., natural person’s name-surname or juristic person’s name, national identification number or juristic person registration number, address, juristic person’s accounting period, and contact channel which can be URL or application.
  • Digital Platform Service Providers’ information, i.e., name, type, and channel of the Digital Platform Service Providers.
  • Digital Platform Service Providers’ point of contact in Thailand.

In the Notification, we noticed that there are additional qualifications of the Digital Platform Service Providers specified therein which we view that those are in conflict with the principle of definition of the term “digital platform services” and Section 8 of the Royal Decree as it shall not include a digital platform service that is intended for offering goods or services of a single digital platform service operator or an affiliated company which is an agent of such operator, irrespective of whether the goods or services are offered to third persons or to affiliated companies.

Furthermore, the aforementioned Digital Platform Service Providers must notify the ETDA of the following information on an annual basis, i.e., (1) within 60 days of the end of the calendar year in the case of a natural person’s platform operator or (2) at the end of the fiscal year in the case of a juristic person platform operator:

  • Value of transactions incurred on the service platforms (if any)
  • Gross income from providing the service platform in Thailand (if any)

This Notification is only applicable to smaller size Digital Platform Service Providers. However, Digital Platform Service Providers in general are still obligated to comply with. The sanction for failure to notify the required information would be subject to the competent official issuing of an order prohibiting the Digital Platform Service Providers from providing the digital platform services.

Author: Panisa Suwanmatajarn, Managing Partner.

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