THAILAND – Recent Amendments to Foreign Employee Rules
Effective 28 March 2018, the Emergency Decree on Managing the Work of Foreign nationals (No. 2) B.E. 2561 (2018) introduced some important changes to the immigration and employment rules for foreign nationals.
The decree also reduces the severe and complex penalties on non-compliant employers and foreign national employees imposed by Emergency Decree B.E. 2560 (2017).
What are the key changes?
Definition of work
The definition of work has been reworded, and now reads: “To perform any professional work, regardless of whether or not there is an employer, but excluding the conduct of business of foreign business license holders according to the Foreign Business Act”, rather than the previous formulation – “exerting one’s physical energy or employing one’s knowledge to perform a profession or perform work, whether or not for wages or other benefits”.
Additional work permit exemptions
The amendment provides for work permit exemptions in certain cases, as follows:
• Foreign nationals who occasionally enter Thailand to organize or attend a conference; to discuss, speak, or present at a conference, training, workshop, or seminar; to perform art and cultural activities; or to participate in sports or any activities to be prescribed by the Cabinet.
• Foreign nationals who enter Thailand for the purpose of establishing a business or investment, or who possess knowledge and a high level of skill, which will be beneficial to Thailand’s development, as prescribed by the Cabinet.
• Representatives of a foreign entity which is granted a foreign business license under the Foreign Business Act.
Urgent work permits
• Urgent and necessary work, which was previously strictly limited to not more than 15 days, is now extendable for up to 15 days if such work by the foreign national is not finished in time; and
• Notification of urgent work to the registrar is required, and failure to do so will lead to a fine of not more than THB 50,000 for the foreign national (previously up to THB 100,000).
• The employer must now notify the Registrar of the Employment Department within 15 days from the date of employment starting and also within 15 days from the date that the employment ends.
• The foreign national employee also has the duty to notify the registrar of the name of his/her employer, place of work, and type of work within 15 days from the date of being hired, and also within 15 days from the date of leaving that employer for another.
• Failure to submit any notification will lead to a fine of not more than THB 20,000.
• According to a “Notification” by the Thai Department of Employment, which came into effect on 28 April 2018, these notification requirements do not apply in the case of foreign employees who correctly hired a foreign national with a valid work permit before 28 March 2018.
• Any notification can be submitted electronically or physically.
Reduced sanctions for noncompliance
• The penalty for working without a work permit is reduced to a maximum of THB 50,000 (previously THB 100,000 or up to five years in prison); and
• The maximum penalty for employing a foreign national without a work permit, or outside of the permitted scope, is reduced to a maximum of THB 100,000 per foreign national (previously THB 800,000) with further sanctions for repeat offenders.
Employers and their foreign national employees in Thailand should contact their immigration advisor at McCown & Evans LLP for further advice on the new SMART Visa.