The primary Thai laws and ordinances governing “aliens”, or non-Thai nationals, working in Thailand are the Alien Workers Act, B.E. 2551 (“Alien Workers Act”) and the Royal Ordinance on Bringing Alien Workers to Work with an Employer in the Kingdom of Thailand, B.E. 2559. On June 22, 2017, the Thai government issued an ordinance combining these two laws called the Royal Ordinance on Management of Alien Workers, B.E. 2560” (the “Management of Foreign Workers Ordinance”), which took effect on June 23, 2017.
The basic concepts contained in the Alien Workers Act were not changed in the Management of Foreign Workers Ordinance, but the penalties were changed. The amended penalties are as follows:
|Engaging a foreigner to perform work that is prohibited to foreigners||
Fine between 400,000 – 800,000 Baht per foreigner in violation of these prohibitions
|Engaging a foreigner who does not have a valid work permit (this would include the common problem where a foreigner has a work permit allowing her or him to work for one employer, but ends up working for another employer)|
|Confiscating the work permit booklet or other important identification of the foreigner||Imprisonment of up to 6 months or fine of up to 100,000 Baht, or both|
|Engaging a foreigner to perform work that is not specified in the work permit||Fine of up to 400,000 Baht per foreigner|
|Failing to inform the authorities within seven days from the date that a foreigner has ceased working||Fine of up to 100,000 Baht|
|Working without a work permit or performing work that is prohibited to foreigners||Imprisonment of up to 5 years or fine between 2,000 – 100,000 Baht, or both|
|Failing to notify the authorities before performing work which is categorized as “necessary and urgent” work. This will likely occur where an employee should have obtained an “urgent work permit” before performing work – see here.||Fine between 20,000 – 100,000 Baht|
|Performing work other than work permitted and specified in the work permit||Fine of up to 100,000 Baht|
Prior to the Management of Foreign Workers Ordinance, there was no penalty for failing to inform the authorities when a foreigner has ceased working, so it was common for employers and employees to disregard this requirement.
Under the Management of Foreign Workers Ordinance, if the employer is a juristic person, then the directors of the employer may also face liability if they are deemed to have engaged in any of the “Employer Offenses” listed in the table above.
Furthermore, the definition of “work” in the Management of Foreign Workers Ordinance was amended and is now somewhat more detailed. Under the Alien Workers Act, “work” was broadly defined as: “exerting one’s physical energy or employing one’s knowledge whether or not in consideration of wages or other benefits.” Under the Management of Foreign Workers Ordinance, activities that constitute “work” now must be linked to activities conducted for the purpose of carrying on an occupation or undertaking a business.
Of particular importance, the Management of Foreign Workers Ordinance also empowers the Ministry of Labour to issue notifications specifying activities that are not considered “work” and are therefore exempt from work permit requirements.
Formerly, the Department of Employment issued a “notification” (which was really in the nature of guidance) that described seven activities that should not be considered “work”. Those seven activities were as follows:
- Attending a meeting, discussion, or seminar
- Visiting an exhibition or exposition
- Visiting a business enterprise or attending a business negotiation
- Attending an academic keynote lecture
- Attending a training lecture or technical seminar
- Purchasing goods at an exhibition or expo
- Attending a board meeting of the company
Because the Management of Foreign Workers Ordinance empowers the Ministry of Labour to issue notifications specifying activities that are not considered “work”, it can, and we expect it will, issue a notification that specifically states the seven activities listed above do not constitute “work” requiring a work permit. In doing so, it may provide more details on this exemption. The Ministry of Labour may also issue other notifications specifying other activities that are not considered work for work permit activities.