New Law – Aliens’ Working Management Emergency Decree
The new law “The Aliens’ Working Management Emergency Decree, B.E.2560 (2017)” was issued to replace the existing “Working of Alien Act B.E. 2551 (2008)” and “Emergency Decree on Recruitment of Foreigner to work with Employers in Thailand, B.E.2559 (2016)” and is effective on 23 June 2017.
A. For the Employer
1) Where an employer hires (1) a foreign employee to provide services which are prohibited for foreigners under the Notification prescribing any work as a work that a foreigner is not permitted to engage issued by the Minister of Labour with approval of the Aliens’ Working Management Policy Board; (2) a foreign employee who does not have a valid work permit; or (3) a foreign employee who holds a work permit of another employer; the employer may be liable for a fine from THB 400,000 to THB 800,000 per foreign employee (Sections 102 and 122).
2) Where an employer assigns a foreign employee to do work and provide services different from those described in his/her work permit; the employer may be liable for a fine not exceeding THB 400,000 per foreign employee (Section 123).
3) Where an employer fails to notify that the employment of its foreign employee has been terminated or such a notification exceeds 7 days from the effective termination date; the employer may be liable for a fine not exceeding THB 100,000 (Section 124).
4) Where an employer seizes a foreign employee’s work permit or personal identifications card; the employer may be subject to imprisonment not exceeding 6 months, a fine of not more than THB 100,000 or both (Section 131).
B. For the Foreign Employee
1) Where a foreign employee is working in Thailand without a valid work permit or provides services which are prohibited for foreigner under the Notification prescribing any work as a work that a foreigner is not permitted to engage issued by the Minister of Labour with approval of the Aliens’ Working Management Policy Board, the foreign employee may be subject to imprisonment of not exceeding 5 years, a fine from THB 2,000 to THB 100,000 or both (Section 101).
2) Where a foreign employee works or provides services different to those described in his/her work permit; the foreign employee may be liable for a fine not exceeding THB 100,000 (Section 121).
3) Where a foreign employee works or provides services on an urgent and necessary basis without notifying the Labour Authority; the foreign employee may be liable for a fine from THB 20,000 to THB 100,000 (Section 119).
The main objective of the new law is to improve the management of foreigners working in Thailand so that it can be carried out systematically and efficiently. The new law provides protection and facilitation to both employers and foreign employees and imposes stricter punishment provisions and penalties for those who violate the law. In addition, the law sets out clear responsibilities for employers who bring foreigners into Thailand to work. This is to provide coverage and sufficient measures to foreign workers who have been exploited. In addition, there are provisions aimed at the civil society to take part in protecting victims from forced labour and human trafficking.
The Order No. 33/2560 was issued on 4 July 2017 by the Head of the National Council for Peace and Order to delay the enforcement of Sections 101, 102, 119 and 122 of the new law to be effective on 1 January 2018 (i.e. the penalty imposed on employer as mentioned in Clause A 1) above and the penalties imposed on foreign employee as mentioned in Clauses B 1) and 3) above),
Employers should seek advice on the changes under the new law to ensure they are compliant and introduce controls to ensure such compliance is maintained at the highest levels.
© 2017 KPMG Phoomchai Tax Ltd., a Thailand limited liability company and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.