The writing will be mentioned in separate issues for convenient references as under:
Limit of Application The Act does not apply to the personnel of the government agencies and government enterprises. This is like the old law.
Employer
The word “Employer” conveys a wider meaning than the old law: It includes any person performing duty in place of the employer, the manager of a company or a partnership who is the employer of the employees, including a sub – contractor who pays wages to the employees.
Employee
The word “Employee” encompasses employees of any kind including household servants, agricultural employees and those who take away materials from the factory, on which he/she works at home, while the old law does not include these categories.
No Money Guarantee
Money guarantee is prohibited unless the employee is assigned to work in connection with Money, in which case the employer shall have to return the money bonded to the employee within 7 days of the date of termination of employment; delayed refund shall incur the interest thereon at 15% p.a.; if such failure to return was made out of the employer’s intent, the employer shall have to pay an additional sum of 15% for every period of 7 days. There is none like this in the old law. (Personal guarantee is not prohibited.)
Liabilities of sub – contractor
All sub – contractors shall have to be jointly responsible with the first contractor to pay all the moneys in arrears to the employee. This is similar to the old law.
Liabilities of New Employer
The new employer who accepts the transfer of an employee shall, like the old employer, have to be responsible to the employee for all his/her rights and benefits. This is a new enactment.
Equal footing
The employer shall have to treat male and female employees equally. This is a new enactment.
Termination of Employment of Unlimited period
If the term of employment is not specified, the employer has the right to terminate the employment by giving a notice in writing to the employee to be effective on the next pay date. Example, the notice given on 30th June shall be effective on 31st July, but if it is given no 1st June, it will be effective on 31st August and not 1st August. Be mindful of this. A notice given on 1st July and a notice given on 15th July are effective on the same date, 31st August, the next pay day.
. Notifying the Authority
In case of having to notify something to the labor authority, the employer shall have to do it by himself/herself.
. Working Period
The calculation of a working period to ascertain the benefits and rights of an employee under the new law, shall have to include holiday and his or her leave days. If such an employer has made many separate working periods to avoid giving benefits and rights to the employees, all the periods shall have to be put together.
. Expenses
The employer shall have to bear all expenses prescribed by law. This is different from the old law which includes only the expenses relating to the welfare and security at work.
. Covering all kinds of Work
All kinds of work, agricultural, fisheries, carriage, marine transportation, works, done at home, or transportation, are under this new Act.
. Working Hours Reduced
The normal working hours have been reduced to the maximum of 48 hours per week (previously 54 hours). Work of danger shall not be performed in more than 7 hours per day and not exceeding 42 hours per week. (This is also new)
. OT Work
Working over – time under the new law shall have to be with the consent of employees and shall not exceed the period of time prescribed by law and only in case of necessity or the cessation of which shall cause damages to the business or in case of emergency. The work of damager shall not be performed over – time. So from now on, the employer has to prepare a paper of consent for the employee to sign to prevent problems. Moreover, in case an over – time work has to be performed more than two hours, the employer shall allow the employee to have a time – break of at least 20 minutes before starting the over – time period.
. Working on Holidays not Allowed
Unlike the old law, this new law does not allow employees to work on holidays, except the nature of work cannot cease its operation, such as hotels, entertainments, transportation, food and beverages, clubs, associations, nursing homes, or in case of emergency, but only so far as it is necessary (without having to receive consent of employees).
No employee is allowed to work on a holiday for the work of dangerous nature and hazardous to the employees’ health.
As for commercial business necessary to perform on a holiday to increase the product or to promote its sale and services, the employer may get the employees to work on holidays with the employees’ consent. However, working on such holidays cannot be performed in excess of the period of time allowed by law.
. Interval Break
Interval break is a bit different from the old law, I. e., not less than one (1) hour a day during the first five hours. The employer and the employees may mutually agree to have more than one break but all the break put together shall not be less than one hour. Interval breaks can be mutually agreed upon otherwise. The time for such a break is not counter as a working hour except the break is more than two (2) hours; in which case the time in excess of the two hours shall be counted as working time, and if the nature of work is to continue with no break the employer and the employee may agree on working continually, and in case of emergency the employer may get the work done by the employees without stopping.
. Weekly Holiday
Like the old law, one weekly holiday shall have to be maintained, on any day of the week as agreed upon between the employer and the employees.
. Customary holidays
Annual holidays can be picked up from official holidays and shall not be less than 13 (thirteen) days per year including national labor day. If such a holiday happens to fall on a take the working day next to such weekly holidays as a substitute holiday, of which the employer shall have to put up a notice.
The employer who gets the employees to work on a holiday may agree with the employees as to which working day they may choose to take as their substitute holiday or the employer may pay wages for such holiday instead for their taking such holiday.
. Annual Vacation
Every employee is eligible to take six (6) working days per year as vacation leave. The employer is bound to fix the duration for which his employees may take their vacation and inform them of that in advance, or he may fix the duration upon which both the employer and the employees have mutually agreed. The unused vacation days may be kept as a vacation credit for use in the subsequent years whatsoever.
The employee who has worked less than one year may be given pro rata vacation holidays. Those who have worked for more than one (1) year, may be given more than 6 (six) vacation holidays. (This is different from the old law)
. Sick Leave
Sick leave differs from that of the old law. According to this new law, the employee can take a sick leave so long as he or she is actually ill. In case of three days or more on a sick leave, the employee shall have to furnish his sick leave with a medical certificate issued by a first class doctor of medicine, or a medical certificate from a government nursing home, such as an official health care station. Failing to produce such a certificate, the employee must explain his excusing reasons to the employer. In case the employer has provided a medical doctor, the employee shall have to avail himself or herself of a certificate from the doctor provided that that he or she was unable to see the doctor for medical examination. During the employee’s sick leave period the employer shall pay him or her the wages receivable by the employee but not more than 30 (thirty) working days per year. The employee receiving wages per unit is also eligible for such pay during his or her sick leave.
. Illness at Work
Any employee who is ill because of an accident work or illness occurring because of or relating to such work need not have to apply for a sick leave, and during the healing period, he or she is not entitled to receive his or her usual remuneration but is entitled to receive only special compensation prescribed by law instead, and such a leave is not prejudicial to the employee’s usual sick leave.
. Leave for Delivery
A woman employee may take leave for delivering her child for ninety (90) days per pregnancy, but she is entitled to her normal wages of not more than 45 days per one pregnancy. Leave for delivering a child is not regarded as a sick leave.
. Leave for sterilization
An employee may take leave for sterilization as long as the doctor recommends, and such a period of time shall not be regarded as a sick leave. This means the employer shall have to pay remuneration during the leave. This is a new enactment.
. Leave of Necessity can be applied for according to the work regulation prescribed for that.
This is a new enactment, by which the employer should consider the number of days and the type of work which he thinks fit to allow the conditions for each leave and payment of remuneration should also be prescribed, e. g., if the leave does not exceed such a number of days, the employee is entitled to remuneration otherwise not.
. Leave for Military Service
Any employee under this new law, like those under the former law, is entitled to leave for military service under an official recruitment or for military training or for preparation test, and the employer shall have to pay his usual remuneration (sixty) days per year.
. Leave for Training
The new law allows the employee to leave for development of his her knowledge or capability according to the rule and methods prescriber by law, which we hope will have to be laid down by the Ministerial Regulation, for which the employer shall have to pay him or her wages throughout the training period.
. Carrying Heavy Objects
The employer shall not allow his or her employees to carry by shoulder either with the other person one at each of the two ends of the pole or to carry by head, or topull, an object of more weight than that prescribed by law or by a ministerial regulation.
. Female Employee
The employer shall not allow female employees to work underground, underwater, in a cave, in an underground chamber or tunnel in a mountain, unless the nature of the work is not harmful to the health or the body of the employee, neither does she work on a scaffold of ten (10) meters high or the work producing explosive or blazing materials.
. Pregnant Employee
A pregnant employee shall not work late at night or the work of dangerous nature, e. g., She shall not be allowed to work from 10 pm to 6 am, or work overtime, or work on a holiday, or work with a machine or an engine that cause vibration, or the work of moving nature or work on a moving vehicle, or the work of lifting, shouldering, or carrying an object with another, or carrying an object with her head, or pulling or pushing an object, the weight of which is more than 15 kilograms, or work in a ship.
If the doctor recommends that she cannot work on her usual, she is eligible for a changein her position whether before or after delivery of her child. These are same as the old law. Heremployer cannot terminate her employment on the ground of pregnancy. This is a new enactment.
Note that jobs of some categories which previously a female employee could not work, such as using a circular saw or cleaning with a working machine or engine is not prohibited to work by female employees, but by a pregnant employee. So a pregnant employee should inform her employer of her pregnancy when she begins to conceive for, at the beginning stage, the employer may not be able to notice her conception.
. Female and Night Work
In the case a labor inspector has found that allowing a female employee to work on a Certain kind of job from 10 pm to 6 am may be harmful to the employee, the inspector may report to the Director – General of the Department of Labor Protection and Social Welfare to order her employer to change her position or reduce her working time. This is different from the old law.
. Child Employee
Child employment under the new Act, particularly those under 18 years of age, imposes more limitations on the employer than that practiced in the old law, namely:
1) Achild under 15 cannot be employed whatsoever.
2) The employer shall have to notify the labor inspector of the employment of a child within 15 days of the date when the child begins its work, and shall also put up the notice of such employment on the board easily discernible so that the labor inspector may be able to inspect it. And not later than 7 days after termination of the employment he shall have to notify the labor inspector of the termination in the form prescribed by the Director – General of the Department of Labor Protection and Social Welfare.
3) The employer shall have to arrange an interval break during the first four hours for child employees.
4) The employer may allow a child employee to work during 10 pm 6 am only when having received permission from the Director – General of the Department of Labor Protection and Social Welfare, for the work of entertaining nature, within a reasonable period of time for the child to rest however.
5) Working overtime and on a holiday for child employees is prohibited.
6) The employers shall not allow a child employee to work on a dangerous job, such as, melting , molding or slitting metal, or work of vibration, heating cooling, making noises and glaring, much more than usual as prescribed in the Ministerial Regulation (to be promulgated), to work with chemicals, poisonous bacteria or poisonous materials, explosive, crane, and radioactive, as mentioned in the Ministerial Regulation concerned, electric or mechanic saw, underground or water, in a cave or tunnel, cleaning a working machine or scaffolding of ten (10) meters or more from the ground, work at a slaughter house, a gambling den, a dancing hall, an entertaining coffee shop or a massage par lour.
7) The employer shall not pay remuneration to any other person than the child employee, and if he were to have paid it to the parents of the child, he cannot off – set the amount with the child’s wages.
8) The employer cannot require any guarantee from the child employee whatsoever (personal guarantee is allowable).
9) The child employee can take leave to participate in an educational training program arranged by the Department of Labor Protection and Social Welfare for 30 days per year during which time the employer shall have to pay the employee or his/her parents remuneration.
10) The employer who has been employing a child employee of 13-15 years of age before this Act becomes effective can continue the employment but he or she must report thereof to the labor inspector within 15 days from the date this Act becomes effective, i. e., within 3rd September 1998.
. Remuneration on Holiday
Remuneration such as wages, overtime pay, holiday – work pay, overtime on holiday pay, has to made in the Thai currency. This is the same as the old law.
The different point is that formerly the word “remuneration” includes moneys of every kind, but now it means the money agreed to be paid to the employee in return for his or her work for the employees under employment contract.
Another difference is that the consent of employee to receive remuneration in a monetary instrument like a check as is now being practiced by many companies, or in a foreign currency, or receiving it at other place than the employee’s work place formerly (under the old law) need not have to be made in writing but now the Act requires a consent in writing with the signature of consenting employee thereon.
. Remuneration on holiday
1. This is not different from the old law, i. e., the employer shall pay remuneration for holidays whether customary holidays or vacations except the daily – waged, hourly – waged or unit – waged employees. All these are the same as the old law.
2. As for the unit – waged employee, the calculation of his or her remuneration for a holiday, vacation, sick leave, sterilization, military service, child delivery, or for the time spent in traveling to work at another place, shall be made out of the average wages the employee receives at the time before he or she takes such leave or vacation. It is advisable that the nature of employment should be changed to a daily – waged or monthly – waged employ - ment for expediency and more benefit to the employer.
. overtime Pay
Over – time pay is the same as the old law i. e., 1.5 times as much as the employee’s hourly wage or unit wage as the case may be. If the employer has paid it according to an agreement more than that required by law, he must continue paying it as agreed. There might be a problem as to what the result would be if the employee agrees to accept smaller wages than the amount required by law. Normally, an agreement on individual benefit is enforceable, but this should be noted that the Labor Act is a public law designed for protecting employees with criminal penalty. It is the law relating to public peace and morality of the people and hence the agreement of non – compliance with the law in such a way will result in nullity. Any employer agreeing with the employee to pay less than the amount required by law is at risk.
The remuneration for holiday over – time work is 3 (three) time as much as the normal wage per hour or per unit as the case may be of the employee.
. Pay for Work on Holiday
Payment for holiday work is made in the same way as that prescribed in the old law, namely;Any employee entitled to holiday pay shall receive one time as much as his or her wage per hour or unit on normal week days.shall receive twice as much as his or her wage per hour or unit on normal week days.
Conclusively, the employees of the above two different categories receive the same amount.
. Compensation for Holiday Work
Another new thing in this 1998 Labor Act is that the employer shall have to pay compensation in case the employer fails to arrange a weekly holiday or in case the employer fails to announce the arrangement of annual holidays or annual vacation leave for employees to take, or in case the employer allows the employee to take his or her holidays or leaves less than the number of holidays he or she is entitled to take. In such a case, the employer shall have to pay the employee compensation or over – time wage as the case may be as though the employee worked on such a holiday.
. Employees not Entitled to Extra – Holiday – wage
However, the following employees have no right to get extra – wages, overtime pay, or overtime pay on holidays, namely:
1. An employee with authority to represent the employer in 1) employment, 2) giving remuneration 3) wage – cut, and 4) termination of employment, unless the employer agrees otherwise, e. g., the manager of company.
2. An employee with duty of managing rail – way work, or standing – by to open or shut the gate of a water –way, reading measurement of quantity or leave of water, public fire – fighting, doing work out of site or the working time being uncertain, working in shift to keep watch on guard of security being not a normal duty of the employee, is not entitled to over – time pay or extra pay on a holiday but he will get only normal hourly pay according to the quantity of work performed by him except the employer has agreed to pay otherwise.
From the above provisions, we can see now that the new Act is different from the old law in quite a number of ways especially the executive under 1 whose duty under the new law is confined to only 4 categories, (1) employing, (2) giving remuneration, (3) wage – cutting and (4) terminating employment, consequently rendering the employer to pay over – time remuneration to his executive members more than ever before.
As for the employee under 2, the old law does not give him or her any remuneration at all, but the new Act impels the employer to pay him or her remuneration equal to his or her normal hourly wages, i. e., to pay 1 time as much as his or her hourly wages in place of 1.5 times as over – time pay, but it is not called “wages for over – time” or “over – time pay” as was called in the old law, but it is simply called “remuneration”
. Calculation of wages
Calculation of wages per hour to pay it to any employee for the work performed by him or her on holiday or for his or her over – time work can be done by putting up his or her monthly salary and then divide the amount by the number of regular hour in the month; for example the salary of an employee is 24,000 Baht and the working hours in a day are 8, then the wage per hour of that person is:
24,000 divide by (30 x 8) = 100 Baht.
This is said to be a new enactment for use in the calculation of wages to be paid for the work done on holiday, but if the employer has been paying more than that, he has to continue paying it at the agreed rate and not at this rate resulting in the detriment to the right of the employee.
. Calculation of Over – time pay
In case the employer has determined regular pay period to be weekly, the calculation of working hours shall include customary holidays, annual vacation leave days and the employee’s leave of absence days during the week in his or her working days. This is the same as mentioned in the old law.
. Work Out of Site
If the employer has sent his employee to work in any other place than the regular work place on holiday, the practice shall be as under:
For the employee who is not entitled to wages on holiday, he or she is entitled to wages on the traveling day, but not entitled to any over – time pay on that holiday during the travel period.
For the employee who is not entitled to wages on holiday, the travel time shall be regarded as his or her working time but he or she is not entitled to wages on that holiday; neither is he or she entitled to over – time pay on the trip except the employer has agreed so to give. In such a case the employer shall have to abide by his agreement.
Besides, the employer shall have to bear all the expenses incurred on the trip.
. Payment in Case Of Winding – up
In case the employer has to wholly or partly close down his business temporarily not because of force majeure (act of God), the employer shall have to pay his employees not less than 50% of normal wages received by each of them before the cessation of business throughout the time the employer cannot afford to get the employees to work.
The employer shall have to notify both the labor inspector and the employees in advance.
This is a brand new enactment not avail – able in the old law.
. Deduction of wages
The employer cannot deduct employee’s wages whatsoever, except that it has to be done for the following purposes:
1. for payment of taxes or other moneys prescribed by law. (such as deduction in accordance with the order of the court);
2. For contribution to labor union;
3. For repayment to the saving co – operative or any other loan designed solely for the welfare of employees;
4. Being withheld as guarantee or to compensate the damage suffered by the employer and incurred by the employee willingly or through his or her gross negligence, with consent of the employee however;
5. For contribution to provident fund, according to the agreement on the provident fund.
The deduction of money under clauses 2, 3, 4 or 5 at each time cannot be made more than 10% of the employee’s wages, and all deduction put together shall not exceed one fifth of the money that the employee receives at the time of deduction, except the employee consents such deduction in writing.
. Minimum Wages
1. The minimum wage is the policy of state. The difference in this matter from the
old law is the Tri – partite Committee chaired by the Permanent Secretary of The Ministry of
Labor, four members representing the state, five member representing the employers and another
five representing the employees, with a government official from the Ministry of Labor as a
member and the secretary of the committee, which is empowered to make a decision as to
minimum wages at each particular place to suit the economic and social situations of each place
and submits it to the Minister of Labor and Social Welfare for announcement of its enforcement.
The Committee is empowered to appoint a sub – committee to carry out the duty on
its behalf.
2. The announcement of minimum wages publicized by the Ministry shall:
- apply to all employees regardless of nationality;
- bind the employer to pay wages not lower than the rates fixed;
- have to cause the notice of minimum wages to be put up at the work place throughout
the time of its enforcement.
By huahin Business lawyer
www.k-huahinlawyer.com