Thai Law Insights

New Work Permit Law: Deportation Fund

Duty Conferred upon Employer and Foreign Employee on contribution to the Fund

Chatchawarl (Charles) Sornsurarsdr

E-mail:	chatchawarls@csbc-law.com
	charles@csbc-law.com

New Work Permit Law

The Foreign Employment Act of 2008 ("New FEA") was passed by the former National Assembly of Thailand to become law effective as of 23 February 2008. The New FEA repealed and replaced the former Foreign Employment Act of 1978, save for subordinate law issued pursuant to the former Foreign Employment Act of 1978 which is in full force further to the extent that it is not in contravention to any provisions of the New FEA pursuant to the transitory provisions of the New FEA.

Deportation Fund Establishment

The new salient provisions in the New FEA include the establishment of the Deportation Fund (the "Fund") (which was never mentioned in the former Foreign Employment Act of 1978). The Fund is administered by the Deportation Fund Committee ("DFC") comprising Labor Ministry's Permanent Secretary as DFC Chairman, Employment Department's Director-General as DFC Vice-Chairman.

Apart from such persons, the DFC members come from Immigration Bureau Commander, Ministry of Foreign Affairs' representative, State Attorney General's representative, Budget Bureau's representative, Provincial Administration Department's representative, Controller General Department's representative, Social Development and Welfare Department's representative, and other qualified committee members appointed by the Labor Minister with approval of the Ministers' Council.

Objective of the Fund

The primary objective of the Fund pursuant to Article 29 of the New FEA is to use monies under the Fund as revolving capital for deportation of foreigners concerned or expelled persons from Thailand under the New FEA, Thai Immigration Act and other law on deportation as the case may be.

Note on Deportation under Thai law

Foreigners who commit the following undesirable acts or offenses such as trafficking in women and children, narcotic involvement, engagement in activity detrimental to public or national security may be deported under the Thai Immigration Act of 1979.

In the sense of the New FEA, apart from deportation pursuant to the Thai Immigration Law, costs and expenses associated with departure of foreigners who are required to depart from Thailand to their home country for good should be paid also by the Fund.

The Employer will be responsible for any additional costs to be incurred in respect of deportation, however, if the contribution by such foreign employee is not made in full per the applicable rate set out by relevant subordinate law.

Source of the Fund

The Fund will mainly be contributed by the Employer of foreign employees set out by the New FEA whereby the Employer has to deduct from foreign employee's wages and contribute the money to the Fund as security against deportation expense per the criteria, method, timing and applicable rate (differing from each national) to be set forth in a ministerial regulation which may be issued, pursuant to the New FEA, within 2 years from 23 February 2008.

Surcharge on Late or Insufficient Contribution to the Fund

The Employer who fails in making contribution to the Fund or in making contribution to the Fund with insufficient amount will be subject to surcharge payment at the rate of 2% per month on such unpaid or incomplete contribution fund otherwise.

Contribution Fund Rebate

Foreign employees who depart for good from Thailand at their own expenses are entitled to request the contribution fund rebate by ways of submission of their request to any Thai Immigration Check-Point or to the registrar appointed by the Labor Minister.

The rebate has to be paid in form of cash or cheque bearing such foreign employee's name or via bank transfer by 30 days from the date of submission of such foreign employee's request.

The request for the return of the contribution has to be initiated by 2 years from the date of the foreign employee's departure. Otherwise, they will no longer be entitled to claim for the return of such amount and that the contribution fund will become the property of the Fund by virtue of law.

If the registrar cannot return such contribution by 30 days, interest at 7.5% on such unreturned contribution fund has to be given to the foreign employee together with the principal until and unless the return of which is made properly to the foreign employee.