Foreign worker regulation relaxations: cautious progress
published : 17 Sep 2018 at 10:08
The Emergency Decree on Managing the Work of Foreigners B.E. 2561 (2018) (Chapter 2) came into effect on March 28, 2018 and consolidates the Emergency Decree on Managing the Work of Foreigners B.E. 2560 (2017). In Chapter 2 of the Emergency Decree, the major changes to the penalties for non-compliance are stipulated and were reduced from the high levels previously specified. Chapter 2 also relaxes some restrictions in the work permit process and provides certain work permit exemptions. There are also significant changes in work permit amendments.
Although the main reason that the government revised certain provisions in Chapter 2 was to accommodate businesses and employers who use migrant workers from Laos, Cambodia and Myanmar, the Decree covers all foreign national employees. Furthermore, some rules only apply to regular companies and not Board of Investment (BOI) or Industrial Estate Authority of Thailand (IEAT) promoted companies.
Significant changes in the Emergency Decree
I) Exemptions for work permits.
Currently, there is some confusion about the new rules for organizing conferences as it is not clear if these rules apply to all types of conferences or just certain types. Clarification from the Employment Department is needed and expected in the near future.
1. A person who enters Thailand to occasionally perform the duties of organizing, setting up, participating, giving opinions, conducting lectures, or demonstrating in a conference including providing training, seminars or business invitation work for artistic, cultural, sport or other purposes as designated by the Council of Ministers, does not need a work permit. The Council of Ministers must designate the period of time for work and conditions as deem appropriate. Note: As to this point, the Government has not yet released any regulations designated by the Council of Ministers. The current rules shall apply until the regulations by the Council of Ministers are released.
The following activities are currently considered as non-work related activities. A business traveler who enters Thailand with the purpose of entry corresponding to the seven categories below does not require a work permit.
- Attending conferences and seminars, and gathering information
- Visiting/viewing exhibitions or trade shows
- Visiting businesses or holding meeting discussions
- Attending special lectures and educational forums (audience participant)
- Attending technical training and seminar (audience participant)
- Buying products at a trade show
- Attending Board or Directors Meeting for their own company
2. No work permit is required for a person entering Thailand to operate or invest in a business or who is a knowledgeable person with capacity or skills which will benefit the country’s development as prescribed by the Council of Ministers. This point refers to the Smart Visa scheme which is a new type of visa designed to attract highly skilled experts and high-level senior executives and investors to help accelerate the development of Thailand’s target S-Curve Industries. Persons holding Smart Visas are not required to have a work permit to work for the endorsed company.
3. Persons who are representatives of a foreign juristic person who receive a Foreign Business Operation License according to the Foreign Business Act. In this case, a foreigner who is registered as the responsible person for a Branch, Representative, or Regional Office registered with the Ministry of Commerce is exempt from obtaining a work permit provided that the entity has received a Foreign Business Operation License.
As of now, the Employment Department’s interpretation of this point is still limited to only the above juristic persons. We believe that foreign juristic persons who receive a Foreign Business Operation License should also be included in the work permit exemption. This would include a company limited majority-owned by foreigners or foreign national corporations as such a company receives a Foreign Business Operation License. In turn, foreign national authorized Directors of any such company limited would not need a work permit. There will be more debate on this issue in the future and there might be more clarification by the Employment Department.
II) Notification of commencement of employment
Both the Employer and Employee must notify the Registrar of the Employment Department within 15 calendar days from the date of employment commencement. Anyone who fails to submit the notification within the timeline shall be fined not more than Baht 20,000. As per current practice, the Labour officer requires notification form (BT8) to be included in the new Work Permit or Pre-Work Permit Approval (WP3) applications. The BT8 form must be signed by the Employer when filing the new application. An Employee must submit the BT11 form for such notification when obtaining a work permit from the Authority.
III) Notification of termination of employment
Employers must notify the Registrar of the Employment Department within 15 calendar days from the date of termination of employment. The Employer must submit the BT10 form for such notification. An Employer who fails to submit the notification within the timeline shall be fined not more than Baht 20,000.
IV) Extension of Urgent Work Permit.
A foreigner who enters Thailand to perform necessary and urgent work as prescribed in the Notification of the Director General must notify the Registrar and file the application within three calendar days. An urgent work permit (UWP), as the name implies, is to be used in urgent situations when a foreign expert or consultant is required to provide services for one specific matter for not more than 15 days. The applicant must be able to explain the nature of the work that needs immediate attention and that it will cause damage to the company if not undertaken. An urgent work permit can be obtained only after arrival in Thailand. Under Chapter 2, if such necessary and urgent work is not completed within the notified period, the foreigner may request an extension of no longer than 15 calendar days. The extension request must be made before the first notification period ends.
An UWP extension can be applied for anywhere in Thailand. A letter of explanation from the sponsoring company is required and must provide the reason why the UWP extension is needed and a new set of UWP applications must be submitted to the Employment Dept. If an UWP application is filed at a Provincial Employment Office other than the Bangkok Office, make sure and check with that specific Provincial Employment Office as there may be additional requirements. For example, the Provincial Employment Office in Chonburi Province requires the UWP extension to be made at least 3 days before the first UWP period ends, whereas at the One Stop Service Center in Bangkok, the UWP extension can be made no earlier than 1 working day before the first UWP period ends.
V) Change of work location and work details
There has been confusion and speculation on this issue. However, while the rules have been relaxed for changes in work locations and work details, it does not mean that a person with a work permit can work for anyone or anywhere in Thailand under that work permit.
1) A work permit holder may change or add work locations which are for employment under the current employer without needing to notify or obtain permission from the Employment Department provided that such location is a location where the employer has registered with the Ministry of Commerce or has legal obligation to work. For example, the employer has a Service Agreement with the client to work at the client’s site. As per Chapter 2, although amending the work permit is not required when changing or adding a work place other than what is described in the work permit, the company (Employer) must have concrete evidence to prove/demonstrate to the Labour Inspector when being investigated that the company has a legal obligation to send its employee to work at a place which is different from that specified in the work permit. The burden of proof is on the employer. If the employer is not able to prove/demonstrate this to the Labour Inspector, both the company and employee may be considered as working with no work permit and liable for the penalties for this mission.
2) The work permit holder may change or add work details (job title, job description) which are for employment under the current employer without notifying or obtaining permission from the Registrar, provided that such changes and additional work is permitted under the Emergency Decree and are not under the prohibited lists of professions.
Author: Ms. Aim-on Larpisal, Head of Immigration and Employment Department, Dej-Udom & Associates. For further information please contact firstname.lastname@example.org
Series Editor: Christopher F. Bruton is Executive Director, Dataconsult Ltd, email@example.com. Dataconsult’s Thailand Regional Forum provides seminars and extensive documentation to update business on future trends in Thailand and in the Mekong Region.