Until last year Thailand regulated foreign work permissions under the Alien Workers Act (2008) (the “Act”). In 2017 the Emergency Decree on Non-Thais’ Working Management Emergency Decree, (2017) (“Decree No. 1”) repealed the Alien Workers Act (2008).
Decree No. 1, however, incorporated much of the repealed Alien Workers Act’s provisions and kept in force most of the regulations issued under it.
Normally, an Act, a law, can only be repealed in Thailand by another law passed by the legislature. However, Decree No. 1 was issued under Section 172 of Thailand’s Constitution, which provides for the King of Thailand to issue an emergency decree “for the purpose of maintaining national or public safety, national economic security, or averting public calamity”.
And Section 172 also provides that such an emergency decree has the force of an Act or law as long as such decree is later approved by the legislature.
On March 27, 2018, the Emergency Decree on Non-Thais’ Working Management (No.2) (2018) (“Decree No. 2”) was issued. Decree No. 2 amended Decree No. 1.
Interestingly, the definition of “working” under the Decree No. 1 remained as broad as in the Act and was defined as “the use of physical strength or knowledge for engaging in an occupation or a job with or without an intention to obtain wages or any other benefit”.
Decree No. 2 now redefines “work” as “an engagement of any profession, with or without employer, but excluding business operation of a licensee under the law governing foreigners’ business operation”.
Decree No. 1 prohibits people who are not Thai citizens from engaging in specific occupations. Permission to do such work will not be granted. Other occupations are open to non-Thais; however, the work performed by anyone who is not a Thai citizen is strictly limited to the activities and conditions to conduct such provided in the permission granted. However, Decree No. 2 now provides for exceptions to the mandatory work permit application requirement as well as other revisions of note.
The most significant changes under the Decree No. 2 are as follows:
A. The following non-Thais can carry out certain activities in Thailand without a work permit:
(1) a non-Thai who comes to Thailand on a short-term periodic basis to: hold or to attend a meeting, lecture, seminar, training, exhibition of art or culture, or sports competition; provide an opinion; inspect work of others; or, any other activities, as prescribed by the Council of Ministers.
(2) a non-Thai who enters into Thailand to: operate a business; make an investment; or who has knowledge, ability, or skills that are considered beneficial to the development of the country;
(3) a non-Thai legal representative (e.g. director) of an alien juristic person that is licensed to operate business under the Foreign Business Act (1999);
B. The need for “emergency work”. It remains the case, as provided for under Decree No. 1 that a non-Thai who wishes to work in Thailand on an urgent and necessary basis for a period of up to 15 days is no longer required to receive formal approval of such from the Department of Employment and need only to notify the Department of such (Note: failure to do so is subject to a fine of up to B50,000). However, Decree No. 2 has amended this provision such that if the work cannot be completed within 15 days an application for an extension of up to an additional 15 days may be made;
C. An employer of and a non-Thai employee must notify the Department of Employment of:
(1) the name, nationality and nature of work of a non-Thai employee within 15 days of employment; and
(2) the cessation of employment and the reason for such cessation of employment of a non-Thai employee within 15 days after the employment ends.
Note: an employer or a non-Thai employee who fails to notify the Department of Employment of the above is subject to a fine of up to B20,000;
D. Work permit applications are now permitted to be filed electronically; and
E. Penalties under Decree No. 1 have been significantly reduced. For example:
(1) the penalties for working without a work permit under Decree No.1 was an imprisonment for a term not exceeded five years or a fine ranging from B2,000 to B100,000, or both. But under Decree No. 2 that has been reduced to a fine ranging from B5,000 to B50,000 and the imprisonment penalty has been repealed; and
(2) the penalties for employing a non-Thai employee without a work permit under Decree No. 1 was a fine ranging from B400,000 to B800,000 for each employee so employed. Under Decree No. 2 this has been changed to a fine ranging from B10,000 to B100,000.
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