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Thai Law Insights

Thai Work Permit Law: New Dilemma on Legal Interpretation

Chatchawat Jitkanekarn

chatchawatj@csbc-law.com

Under the present Thai Work Permit Law, the Foreign Employment Administration Emergency Decree 2017 (‘WP Emergency Decree’), an employee newly set out in WP Emergency Decree is defined as ‘employee who works for employer with remuneration in return’. Also, work is defined as ‘occupation with or without an employer but exclusive of foreign business license engaged by licensees pursuant to the Law on Foreign Business Operation Act (Alien Business Law)’. The previous Act on Work Permit provided that work means ‘engaging in work by exerting one’s physical energy or employing one’s knowledge whether or not for wages or other benefit’. In this respect, under the previous Act, any foreigners doing any work with or without remuneration were subject to work permit acquisition.

According to the ruling by the Minister of Labor in Administration Appeal No.003/2561 dated 19 October 2018, a volunteer without remuneration who works for a foundation but receives meal expenses, travelling expenses, or, accommodation allowances at the time of working for a charity foundation, would be considered as an employee defined by the present Thai Work Permit Law. One may infer from the ruling that any employee without remuneration in return should not be subject to the present Thai Work Permit Law compliance. In this respect, any foreigner who works as volunteer or employee without remuneration in return + without any other sort of remuneration such as for meals, travelling expenses or, accommodation allowances would be excluded from Thai Work Permit compliance.

The above interpretation of the Thai Work Permit Law by such authority constitutes a dilemma as to its legal interpretation. Under the present Thai Work Permit Law, it sets out specifically the exclusion in Section 4, that a member of a diplomatic mission, member of a consular mission, persons performing duties or missions under an agreement concluded by the Government of Thailand with a foreign Government or an international organization as being exempt from Thai Work Permit requirements.

However, in light of the Minister’s ruling mentioned above, a new exclusion per the authority ruling, implies a new exclusion- that any employee without remuneration is not subject to Thai Work Permit requirements. ┬áThis constitutes a new legal dilemma because the Minister of Labor’s decision has not yet been reviewed or affirmed by the Council of State or any Thai court judgment.