CHAPTER
19
WORK
PERMITS
The Foreign Employment Act (1978) is
the principal Act that regulates the employment of foreigners in Thailand.
The Act prohibits foreigners from
engaging in work in Thailand, whether paid or unpaid, unless a work permit is
first granted, except for certain exempt categories of employment. Regulations
issued under the Act list certain occupations that are prohibited to foreigners
and impose criteria that work permit applicants must comply with. If it is
desired to change the scope of the employment, or the locality or place of
work, application for a variation must be made in advance to the Ministry of
Labor. The Director General is granted regulatory powers and breach of the Act
by foreigners or employers is subject to fines or imprisonment.
The terms of the law are strict and
except for foreigners working in a small number of exempted employments, there
are few exceptions to the requirement to comply with the Act.
Foreign Employment Act (1978)
Work permit always required Under the Act, a work permit is always required when a foreigner
undertakes any form of work, whether the work is paid or unpaid.
Exempt employment The requirements of the Act do not apply to foreigners who are:
2. Representatives of member countries and
officials of the United Nations and specialized institutions.
3. Personal servants coming from foreign
countries to work for the above persons.
4. Persons who perform duties or missions under
an agreement concluded between the Government of Thailand and foreign
governments or international organizations.
5. Persons who perform duties or missions for
the benefit of education, culture, art, sports or other activities as may be
prescribed by decree.
6. Persons permitted by the Government of
Thailand to enter and perform any duty or mission.
Urgent and essential work A foreigner may engage in any work that is not prohibited to
foreigners, only upon the issue of a work permit.
This does not apply to a foreigner
who has been temporarily permitted to enter Thailand in order to engage in work
that is necessary and urgent, for a period not exceeding 15 days, but he may
engage in such work only after he has notified the Director-General in the
prescribed form.
Under the Thailand-Australia Free
Trade Agreement, a work permit
is not required for Australian citizens who are business visitors conducting
business meetings in Thailand for up to 15 days, and up to 90 days for APEC
Travel Card Holders.
Work permit can include conditions In granting a permit to a foreigner, the Director-General may prescribe
any condition therein for the foreigner to comply therewith. In such case, the
foreigner is required to give assurances that he will comply with such
conditions.
Businesses subject to investment
promotion A foreigner who has been permitted
entry to work in Thailand under the Investment Promotion Act may apply for a
permit within 30 days from the date of entry, but if such foreigner is already
in Thailand the period of 30 days shall begin from the day he is aware that he
has been granted permission to work under the law on investment promotion or
other laws. Whilst the application is pending, the applicant is allowed to
engage in such work.
Criteria for work permit applicant A foreigner who may apply for a permit must possess the following
qualifications:
2. he/she is not disqualified or prohibited
under ministerial regulations.
Period of validity of permits Work permits are generally valid for one year from issue. For
foreigners working in promoted businesses, it may be issued for a period of up
to two years.
Under the Thailand-Australia Free
Trade Agreement which came into force on 1 January 2005:
1.
Australian
citizens transferred to work in Thailand for the same company will be granted a
visa and work permit for up to five years, renewable annually.
2.
Australian
citizens transferred to work in Thailand for an Australian or Thai company
other than their employer in Australia will be granted a visa and work permit
for up to three years, renewable annually.
Application for renewal If the holder of a permit wishes to continue working, he must apply for
renewal prior to expiry. In such case, the applicant for renewal may continue
working until an application for renewal is refused. Renewal will usually be
for one year.
Appeals Where a work permit is refused not renewed or permission to change the
work or place of work is refused, the applicant has a right of appeal. Such
appeal must be submitted in writing within 30 days from the date of knowledge
of the refusal. Appeals must be considered within 15 days and the Minister must
complete his consideration of the appeal within 30 days. The decision of the
Minister is final.
Right to continue working pending
appeal In the case of an appeal against an
order refusing the renewal of a permit, the appellant may continue working
pending the appeal decision.
Permit must be made available for
inspection A holder of permit must keep the
permit on his person or at the place of work during working hours, in order
that it may be readily shown to a competent official.
Permit lost or damaged If a permit is materially damaged or lost the holder of the permit must
apply for a substitute within 15 days from the date of knowledge of such damage
or loss.
Termination of employment Where employment terminates, the work permit must be returned to the
Registrar of the district where the place of work is situated, within seven
days from the date of termination.
Duty not to engage in unauthorised
work or change locality or place of work without prior permission A holder of a permit may not engage in work, other than that which is
specified in the permit, or change the locality or place of work, unless prior
permission is obtained from the Registrar.
Employer must notify employment
transfer or termination Any person who employs a
foreigner, transfers a foreigner to work in a locality other than that which is
specified in the permit or has a foreigner who resigns from his employment,
must notify the Registrar within 15 days from the date of employment, transfer
or resignation.
Fines and imprisonment Fines and imprisonment are imposed for breaches of various of the
sections of the Act.
Prohibited occupations The Act sets out a list of occupations that are prohibited to
foreigners:
1. Labouring work
2. Work in agriculture, animal husbandry, forestry or fisheries excluding
specialized work in each particular branch or farm supervision
3. Bricklaying, carpentry or other construction work
4. Wood carving
5. Driving mechanically propelled vehicles or driving
non-mechanically-propelled vehicles, excluding piloting of international
aircraft
6. Shop assistant
7. Auctioneer
8. Supervising, auditing or giving service in accountancy excluding occasional
internal auditing
9. Cutting or polishing jewelry
10. Haircutting, hairdressing or beauty treatment
11. Cloth weaving by hand
12. Weaving of mats or making products from reeds, rattan, hemp, straw
or bamboo
13. Making of rice paper by hand
14. Lacquerware making
15. Making of Thai musical instruments
16. Nielloware making
17. Making of products from gold, silver or gold-copper alloy
18. Bronzeware making
19. Making of Thai dolls
20. Making of mattresses or quilt blankets
21. Alms bowl casting
22. Making of silk products by hand
23. Casting of Buddha images
24. Knife making
25. Making of paper or cloth umbrellas
26. Shoemaking
27. Hat making
28. Brokerage or agency, excluding brokerage or agency in international
trade
29. Engineering work in civil engineering concerning design and
calculation, organization, research, planning, testing, construction
supervision or advice, excluding specialized work
30. Architectural work concerning design, drawing of plans, estimating,
construction supervision or advice
31. Garment making
32. Making pottery or ceramics
33. Cigarette making by hand
34. Tour guide or conducting sightseeing tours
35. Street vending
36. Typesetting of Thai characters by hand
37. Drawing and twisting silk-thread by hand
38. Office or secretarial work
39. Legal or litigation services
Procedural matters
Employer may submit a work permit
application Any person wishing to employ a
foreigner in his business in Thailand may submit an application on behalf of
the foreigner to the Director-General. The Director-General may issue the
permit only after the entry into Thailand of such foreigner.
Under the Thailand-Australia Free
Trade Agreement, applications by Australians for visas and work
permits submitted by an employer on an applicant's behalf may be given advance
notice of approval with visa to be granted on arrival, subject to proof of
identity.
Submitting letter of sponsorship and
obtaining Non Immigrant B visa In order to apply for a work permit,
a foreigner must enter Thailand holding a class B Non Immigrant visa.
The procedure to obtain such a visa prior to 2006,
was quite simple: a letter of sponsorship confirming the employment offer was
submitted by the applicant to a Thai embassy or consulate outside Thailand.
There was in practice little difficulty in obtaining the issue of such a visa.
Having then obtained the visa, the applicant would then enter Thailand, and
submit the application for a work permit. If the permit had not yet been
granted, then an application to extend the visa by one month at a time could be
made, until the permit was granted. When the permit was issued, the visa could
then be extended for 12 months backdated to the first date of entry.
Under a regulation issued in 2006, this procedure
has changed. Firstly, a prospective work permit applicant has to submit to the
Ministry of Labour in Thailand copies of the corporate documents of the
sponsoring company, details of the offer of employment including salary, copies
of his passport and photos, and obtain a receipt from the MOL. Then the
applicant applies to a Thai embassy or consulate for the issue of a Non
Immigrant B visa as above, and must include a copy of the receipt from the
Ministry of Labour, and copies of the employer's corporate documents.
Application for a work permit The following documents should be submitted with the work permit
application:
under
the law on immigration.
2. Documents certifying educational
qualifications or certificates of the employers for whom the applicant used to
work, specifying details of characteristics and period of the work that the
applicant used to perform.
3. The potential employer's certificate of
employment of the applicant together with supporting evidence for not employing
a person of Thai nationality to work.
4. Certificate of a medical practitioner
certifying that the applicant is not suffering from diseases prescribed under
regulations.
5. Certificate of the relevant government
agency showing that the business of the potential employer for whom the
applicant is going to work has been duly and lawfully registered or licensed to
be established and operated and also showing the category of the business.
6. Three photos, half-body, facing front,
without hat, size 5 x 6 centimetres, having been taken within the previous six
months.
A person who is granted a work
permit must report in person to collect it.
Under the Thailand-Australia Free Trade Agreement,
Thailand has agreed to reduce the number of documents required from Australians
for work permits and renewals of work permits.
Application for renewal of a work
permit An application for a work permit
renewal must be submitted with documentation as follows:
2. Passport or document used in lieu of
passport, foreigner's personal identification papers or residence permit.
3. Certificate of the employer stating the
reasons for the requirement to employ the applicant to continue to work
together with supporting evidence thereof.
Application to approve a change in
work, or locality or place of work An
application for permission to change the permitted work, or locality or place
of work must be submitted with documentation as follows:
2. Existing work permit.
3. Documents certifying the educational
qualifications or certificates of the employers for whom the applicant used to
work, specifying details of characteristics and period of the work the
applicant used to perform, in the case of an application for permission to
change work.
4. Certificate of employment of the potential
employer engaging the applicant to work, in the case of application for
permission to change work or place of work, together with supporting evidence
giving reasons for not employing a person of Thai nationality to work.
5. Certificate of the relevant government
agency showing that the business of the potential employer for whom the
applicant is going to work has been duly and lawfully registered or licensed to
be established and operated and also showing the category of the business, in
the case of application for permission to change work or place of work.
6. Three photos, half-body, facing front,
without hat, size 5 x 6 centimetres having been taken within a period not
exceeding six months before.
A person who is granted permission
to change work or locality or place of work must report in person to collect
the work permit.
Under the Thailand-Australia Free Trade Agreement,
Australians who hold work permits may participate in business meetings anywhere
in Thailand, including locations not specified in their work permits.
General criteria for approval of a
work permit The criteria for approval of the
issue of a work permit were revised in October 2004. The present criteria for determining whether or not to issue
a work permit include the following matters:
1.
Political, religious, economic and social stability in
Thailand.
2.
The availability of Thais to perform the work.
3.
The benefit to Thailand including:
(a) remittance of substantial amounts of foreign
currency into Thailand for investment and expenses;
(b) creation of employment for a substantial
number of Thais; and
(c) potential enhancement of the country’s
economic development and opportunity for state-of-the-art
knowledge and skills to be
transferred to Thais.
4.
Development of skills and dexterity for Thais through
transfer of knowledge, skills and technology to Thais resulting from the foreigner’s
employment in Thailand.
5.
Humanitarian reasons.
If
the considerations listed above are favorable, then a work permit may be issued
to the applicant based on the following criteria:
(a) An unspecified number of foreigners coming
to Thailand to work in financial institutions supervised by the Bank of
Thailand or Ministry of Finance in such numbers as are set forth in letters of
certification issued by the relevant governmental authorities.
(b) An unspecified number of foreigners for
whom any other national, provincial or local governmental authority or state
enterprise issues a letter of certification specifying the foreigner’s names,
positions and duration for their work.
(c) Up to 10 foreigners working for:
(i) a Thai employer with at least 2 million
Baht in paid up capital (with one work permit
permissible for
each 2,000,000 Baht of paid up capital) or
(ii) a foreign incorporated employer who has
remitted and invested no less than 3 million Baht in
Thailand (with one
work permit permissible for each 3 million Baht invested) or
(iii) a foreign incorporated employer who cannot
provide evidence that it has brought in foreign
funds, but which
started its business in Thailand before 30th October 2002 and whose bank
balances (as evidenced by its bank statements) exceeded 3 million Baht during the
past 6 months (with one work permit permissible for each 3 million Baht).
The
amounts of these investments are reduced by 50%, if the foreigner is married to
and living with a Thai spouse and the marriage is legally registered in
Thailand.
The
limit of 10 work permits in the preceding cases may be exceeded if:
(i)
the employer paid at least 3,000,000 baht tax during the preceding year;
(ii)
the employer is an exporter who brought in foreign currencies equivalent
to at least 30 million Baht
during the preceding year;
(iii) the employer works in the tourist
sector and brought at least 5,000 tourists to Thailand during the
preceding year;
(iv) the employer employs at least 100
Thais;
(v)
the foreign employee uses technology that Thais cannot handle or the
number of Thais who can handle the technology is inadequate to meet local
demand so long as technological skills are transferred to Thais within a
prescribed period;
(vi)
the foreign employee has specialised knowledge and skills for work to be
completed within a set
period of time;
(vii) the foreigner works in the areas
of entertainment, theatre, or music on an ad hoc basis and the work is
to be completed within a set
period of time;
(d) Foreigners working for foundations,
associations and other non-profit or civic organizations.
(e) For representative offices of foreign trading
companies, up to (i) two foreigners who advise or disseminate information about
their company’s products or provide reports about the Thai market to their home
offices and (ii) five foreigners who source goods and services in Thailand for
the foreign company or who are responsible for quality control for such goods
and services unless the representative office sources at least 100 million Baht
in goods and services from Thailand during the preceding year (in which case
this limit may be exceeded).
(f) For regional offices of foreign companies
that service regional operations outside Thailand and do not
receive income for those services; and
are not authorized to sell goods or services, negotiate deals or
accept purchase orders; and whose
expenses are allocated only by their head offices, up to 5 work
permits, unless more than 10 million
Baht is remitted to Thailand in the preceding year to cover expenses
(in which case this limit may be
exceeded).
One Stop Service Centre For those who qualify, a work permit and immigration extension may be
issued at the One Stop Service Centre. This fast track procedure is available
to an applicant who:
2. personally invests Baht 2 million or Baht 10
million in a business, where it is shown that the Baht 2 million or Baht 10
million, as the case may be, was brought into Thailand officially in the
applicant’s own name; or
3. is employed by a company with Baht 30
million in registered capital or who has Baht 30 million in working capital.
Applicants in the above categories
may qualify for a one or two year work permit, issued within three hours of
application. Those who do not qualify for the One Stop Service Centre must
apply in the traditional way, which will often involve a longer period.
Under the Thailand-Australia Free
Trade Agreement, all
Australian business visitors are entitled to access to the One Stop Visa and
Work Permit Service.
Tax liability During the period a foreigner is waiting for his work permit to be
issued, he is not permitted to work. The Revenue Department, however, will
normally assess income tax due from the foreigner for the non‑working
period, since it is permissible to be paid salary whilst waiting for the work
permit to be issued.
Revised 1 December 2006