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Phuket Law: Working without a work permit now possible

Phuket Law: Working without a work permit now possible

The general rule is that someone who is not a Thai citizen must obtain a work permit if he or she wants to work in Thailand. Recently, however, Thailand has made a few significant exceptions to this general rule, as well as, some other notable changes to the foreign work permission regimen.

immigrationcrimetourismeconomics
By Jerrold Kippen

Saturday 30 June 2018, 09:00AM


For some people the need to be issued a work permit has just gone the way of the dodo. Photo: Tanyaluk Sakoot

For some people the need to be issued a work permit has just gone the way of the dodo. Photo: Tanyaluk Sakoot

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 In 2017 the Emergency Decree on Non-Thais’ Working Management Emergency Decree, (2017) (“Decree No. 1”) repealed the Alien Workers Act (2008).

Decree No. 1, however, incorporated much of the repealed Alien Workers Act’s provisions and kept in force most of the regulations issued under it.

Normally, an Act, a law, can only be repealed in Thailand by another law passed by the legislature.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);

 

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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.


DUENSING KIPPEN is an international law firm specialising in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in over 50 other countries. Visit them at: duensingkippen.com

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cherngtalay@gmail.com | 02 July 2018 - 11:38:16

I could be wrong, but it sounds like company Directors no longer require a work permit to perform basic tasks.  For several years there was an issue with non-WP directors signing checks, company documents, etc.

KurtTi | 01 July 2018 - 19:43:06

Mr.Kurt is right.We all are invited to comment. And it is very good that people like him are here and raising the voice. I like those clever comments.

Kurt | 30 June 2018 - 21:54:41

Mr Wiesel, mr Kurt just comment on articles, as invited. Mostly with suggestions/thoughts how to make things better on Phuket. His private life here is fine. Sometimes indeed ridicule the comments of thai Officials, comments that not make Phuket  a better place, which is not the aim of many officials. That is all. And mr Kurt stands not alone in his thoughts.

Rich 44 | 30 June 2018 - 21:52:19

Definition of “working” under the Decree No. 1 remained 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”.
The elderly lady drops her package. If you are not Thai and stoop to pick it up and hand it back to her, by this definition, you have done a job, can be fined and go to priso...

Wiesel | 30 June 2018 - 13:06:06

was there any positive comment from Mr. Kurt??? Why you are here if everything is so bad??

CaptainJack69 | 30 June 2018 - 12:46:45

A non-Thai who "operates a business"? Strange that these exceptions should be so vague when the new definition of work is just as vague as the old one. It's almost like they couldn't decide which way to go, so just kept everything as vague as possible.

Still, good to hear the 3 Brits in a cave in Chiang Rai can't be charged with working illegally.

Kurt | 30 June 2018 - 12:13:29

Anyone understand all this may step forward.Many Decrees, Act's and more
Many loopholes for thai employers  Misunderstandings, no problem, easy to solve to make it understanding, right? Money makes right what is wrong. I am sure officials of different department have not lined up together in this
In same PN issue today the deportation treat of 14,000 needed workers
It all is and remains a m...

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