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July 11, 2017

Thailand: New Obligations for Employers and Employees under Reformed Law on Foreign Workers

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In order to resolve the issue of illegal foreign workers in Thailand, and regulate those who hire them or help to bring them into the country, the government has urgently promulgated a new law, entitled the Royal Decree on Managing the Work of Foreigners B.E. 2560 (2017) (the New Law), which came into effect on June 23, 2017. It replaces and unifies the Working of Foreigner Act B.E. 2551 (2008) and the Royal Decree on Recruitment of Foreigners B.E. 2559 (2016). The New Law is designed to systematically manage the employment of foreigners, regardless of the industry in which they work.

The fundamental concepts of the previous laws have been preserved. It remains illegal for foreigners to work without a work permit or for employers to employ foreigners without a work permit; recruiting foreigners into Thailand to work continues to be subject to licensing and strict regulation; and foreign workers who cease to work in Thailand must still be repatriated at the expense of the licensee or the employer.

Notable key changes and enhancements under the New Law are summarized below.

Foreign employees

  • The definition of “work” has been tightened to read “…exerting one’s physical energy or employing one’s knowledge to carry out a profession or perform works, whether or not for wages or other benefits” (emphasis added).
  • The New Law empowers the Minister of Labor to announce new categories of work which foreigners are prohibited from carrying out, upon the recommendation of the Committee Determining Policies on Managing the Work of Foreigners. The list of 39 forbidden employment categories, which has been in use since 1979, continues to be applicable for the time being.
  • The penalties to be imposed on foreign workers for certain offenses have been significantly increased.

Employers and licensees to recruit foreign workers

  • Employers have a new duty to notify labor officials of any foreign employee ceasing to work, for whatever reason, within seven days.
  • Confiscating the work permit or identification document of a foreigner, by any person, is now a criminal offense, punishable by imprisonment for up to six months, or by a fine of up to THB 100,000, or both.
  •  The penalties to be imposed on employers for certain offenses have been significantly increased.

The New Law has no impact on preexisting work permits until they are due for renewal, and existing work permit applications do not need to be resubmitted. The Department of Employment’s criteria for issuing work permits will remain applicable until announced otherwise.

On July 4, 2017, the National Council for Peace and Order issued an executive order under section 44 of the Constitution to postpone enforcement of four penalty clauses under the New Law (marked * in the tables above) until January 1, 2018. This order is intended to ease the concerns of Thai employers and foreign workers over the increased fines under the New Law.

 

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