EMPLOYMENT: WORKING FROM HOME

Amendment No. 8 to Labour Protection Act, 1998

On 3 January 2023 Thailand’s Parliament approved Labour Protection Act (“LPA”) No. 8, which now awaits publication in the Government Gazette before coming into effect.  It will add a new Section 23/1 to the LPA, dealing with the subject of working from home, which is said to upgrade labour protection and improve quality of life for employees.

This LPA amendment is timely, in that for several years past many employees have with their employer’s consent been working wholly or partly from home, or from other places outside the employer’s workplace, with no legislative framework for their so doing.  The new LPA Section 23/1 will now to some extent provide that framework.

The drafting approach taken is however unusual, in that for the most part the new LPA Section 23/1 makes suggestions, rather than imposing requirements or prohibitions to be observed. Entering into an agreement on working from home will continue to require mutual consent of employer and employee, as will all almost all the terms and conditions of such an agreement.  There will be no sanction against an employer, or an employee, who declines to enter into such an agreement if asked to do so. If an agreement on working from home is entered into by mutual consent of employer and employee then certain topics are suggested by the new Section 23/1 that may, at the discretion of    the parties, be included in it. These are:

(i)         time of beginning and end of the agreement;

(ii)        normal working days and hours, break times and overtime working;

(iii)       rules on overtime and holiday working, including different types of leave;

(iv)       scope of work, and the employer’s supervision or control of such work; and

(v)        duties relating to the provision of working tools or equipment, and treatment of expenses necessarily arising from performance of the work.

The contracting parties may opt to include all, some, or none of these topics in the agreement, and may include other topics at their discretion.

An agreement on working from home may be made as a stand-alone agreement, or as an amendment to the employment contract.  While under Thai law employment contracts may be made orally, the new LPA Section 23/1 prescribes that an agreement on working from home must be made in writing or in electronic data format which is accessible and retrievable.

An agreement falling within the scope of the new LPA Section 23/1 does not necessarily relate only to work performed by the employee at his home, but can extend to performance of work at any temporary residential location, or at any other place outside the employer’s office or workplace.  The agreement should clearly identify the location(s) where the employee is authorised to work, and in practice it would be important for the employee to keep the employer informed of all changes in those locations or other relevant change of circumstances, and to obtain employer’s consent to the change where the agreement so requires.

Employees who work at any of those places pursuant to an LPA Section 23/1 agreement, whether using communication or information technology or otherwise, are said to have the same rights as employees who work at the place of business or office of the employer.  However the definition of “workplace“ in the Occupational Safety, Health and Environment Act, 2011 (the “Health and Safety Act”) is not extended to cover situations where employees are working remotely, so apparently an employer’s obligations under the Health and Safety Act in respect of safety and accident-prevention in the workplace will not apply in those remote-working situations. This issue may need to be addressed by future ministerial regulation under the LPA or amendment to the Health and Safety Act.

The new LPA Section 23/1 stipulates that, at the end of normal working hours as fixed by an agreement on working from home, the employee has the right to refuse communication by any means with the employer, except where the employee has given prior written consent.  This is arguably already the case under existing law, but in the new LPA Section 23/1 it is made explicit.

For more information or details on this upcoming amendment of employment law in Thailand please contact us at psl@pricesanond.com.

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This update is written for general information only. It does not constitute advice, and consultation with professional advisors is recommended.