【Q & A Labour law in Thailand】
Q1：What are the regulations on working hours in Thailand?
A1：The Labor Protection law stipulates that working hours shall not exceed 8 hours per day and not exceed 48 hours per week. In case of working hours for dangerous work as prescribed in Royal Decree shall not exceed 7 hours per day and not exceed 42 hours per week.
Q2. What are the regulations on Annual Holidays of an employee in Thailand?
A2. An employee is entitled to receive wage for Annual Holidays. In case the employee hasn’t completed 1 year of working, the employer may provide such leave in proportion. The employee shall notify the employer in advance or as they agree. The employer and the employee may agree in advance for collecting Annual Holidays and combine with other years Annual Holiday.
Q3：Does the Civil and Commercial code require to enter into an Employment Contract in written?
A3：An employment contract may be either written or oral, as evidenced in Supreme Court Judgment No.2652-2653/2529 An employment contract is formed when each party expresses a common intention with the other party to make a contract whereby one party is paid in return of work done. Also, CCC Section 575 does not regulate an employment contract made in written, only paying a remuneration for the duration of services is sufficient for the contract to be formed.
Q4：Does the Labor Protection Act require an employer providing work regulations?
A4：By virtue of Section 108 of Labor Protection Act, An employer who employs 10 or more employees must establish work rule in Thai which contain at least the following details;
(1) Working days, normal working hours and rest period;
(2) Holidays and rules for taking holidays;
(3) Rules governing overtime work and holidays work;
(4) Date and place for payment of wages, overtime and holiday pay, holiday overtime pay;
(5) Leave and rules for taking leave;
(6) Discipline and disciplinary actions;
(7) Lodging of grievances; and
(8) Termination of employment, Severance pay, and Special Severance pay.
An employer shall announce the work rule within 15 days of the date that an employer employs ten or more persons; and an employer shall always keep a copy of such rule at the place of business or at an employer’s office and deliver a copy of the rules to the Director-General or a person entrusted by the Director-General within 7 days from the date of their announcement of application. However, if an employer does not employ 10 or more employees, an employer is not required to establish work rule.
Q5：What if an employer pay the wages less than the minimum wage (i.e. 9,000 Bath/Month) to employees who are paid on a daily basis?
A5：The basis of minimum wage per day for daily workers is 300 baht per day. For example, if the worker works for 20 days in a month and the worker will be paid 6,000 Baht (300 Baht x 20 days) for the month, which is not illegal.
If the labor agreement stipulates that the employer shall pay wages to the employee on a monthly basis, the employer must meet the minimum wage requirement (i.e. 9,000 Baht/Month), regardless of the number of days of the month. Thirty days is regarded one month, if not specified.
Q6：Are there any differences regarding to the rights that full time employees and part-time employees are entitled to?
A6： No, the Labour law stipulates that all kinds of employees are entitled to the same rights as determined in the Labour Protection Act.
Q7：What is the regulation on necessary business leave and how many days can an employee take such leave?
A7：The Labour Protection law does not prescribe how many days an employee can take leave or shall he receive wage or not. The law only prescribes in the Section 34, Labour Protection Act B.E. 2541 that an employee shall be entitled to leave for necessary business in accordance with the work rule of his or her workplace.
Q8：What are the advantages of adopting a fixed-term employment contract?
A8：By virtue of Section 17 of Labor Protection Act, A contract of employment shall expire upon the completion of the period specified in the contract of employment with no requirement for advance notice.
1. Notice of termination of the employment contract
A fixed-term employment contract shall expired when the specified period in the contract ends without any requirement for advance notice being given to an employee.
2. Not Unfair termination
At the end of definite period, the contract will be ended automatically. The employee cannot claim that the employer has terminated unfairly to the employee for severance pay
Q9：Can an Employer employ a Children employee?
A9：By virtue of Section 44 of Labor Protection Act, An Employer shall not employ a child under fifteen years of age as an Employee.
According to Section 45, In case of employment of a young worker under eighteen years of age, an employer must comply with the following;
(1) notify a Labor Inspector regarding the employment of a young worker within fifteen days of the young worker commencing work;
(2) prepare a record of employment conditions in case of a change, taken place to be kept at the place of business or at the office of the Employer available for inspection by a Labor Inspector during working hours; and
(3) notify the Labor Inspector regarding the termination of employment of a young worker within seven days from the date of young worker being dismissed.
Simply say, children employee must be 15 years or older. For those over 15 but under 18, additional restrictions are applied such as an employer is required to inform the Labor Inspector.
Q10：What are the regulations on Sick leave in Thailand?
A10：By virtue of Section 32 of Labor Protection Act, An Employee is entitled to sick leave as long as he or she is actually sick. For sick leave of three days or more, the Employer may require the Employee to produce a certificate from a first class physician or an official medical establishment. If the Employee is unable to produce a certificate from a first class physician or an official medical establishment, the Employee shall give
an explanation to the Employer.
An employee is entitled to sick leave for such days as an employee is actually ill. An employee, however, is entitled to receive wages for 30 days of sick leave per year according to Section 57, An Employer shall pay Wages to an Employee for sick leave under Section 32 equivalent to Wages of a Working Day throughout the leave period, but not exceeding thirty Working Days per year. When an employee takes sick leave for 3 or more than 3 days, an employer can request an employee to produce a medical certificate. If an employee cannot produce a medical certificate, an employee must give an explanation to an employer.
Q11：What is the regulation for an employer to suspend an employee from work?
A11：When the employee is accused to have committed a crime, the employer is entitled to proceed investigation but shall not suspend the employee from work during such investigation unless he is allowed by the work rules or other agreements. Then, the employer shall issue a written suspension order, notify the employee prior to the suspension, and the period of suspension shall not exceed 7 days. The employer shall pay not less than 50 percent of wages of the employee’s each working day during the suspension.
Q12：What will happen if the employee continue working after the end of definite period?
A12：It is De facto extension. According to Section 581 of the Civil and Commercial Code, if after the end of the agreed period of time, the employee has continued to render services and the employer knowing there of does not object, the parties are presumed to have made a new contract of hire on the same terms. Also, it could be presumed that the employee is working on a non-fixed-term contract, as evidenced by the Supreme Court Judgment No.3318/2550.
Q13：What if an employment contract is unwittingly contained certain clauses which are sub-standard to Labor Protection Act?
A13：Labor Protection law is concerning the rights and duties of employers and employees. It primarily establishes minimum standard practices in general labor force utilization, women and child labor utilization, remuneration, severance, and Employee Welfare Fund. An employer must provide the minimum standard conditions of employment. Thus, an employer cannot draft any provision which do not comply with the minimum standard set by the Labor Protection Act otherwise any sub-standard provision becomes void.
Q14：Regarding to the previous Q&A, an employment contract is not required to made in written. So, how to prove the employment relationship then?
A14：An employment contract does not need to be in written. An employment relationship can be proven by an employer’s payroll slip given to an employee, or other documents submitted to the Social Security Office, or the Revenue Department. The terms of an employment relationship, moreover, can be defined by the parties’ conduct.
Q15：As you know, an employee who works for 120 days is entitled to severance pay if an employer fire him/her without cause. Still, there are certain exceptions that an employer could refuse to pay severance payment. What are the exceptions?
A15：An employee who has been working for 120 days is entitled to severance pay. This applies for all cases except if an employee has committed act which entitle an employee to refuse to pay severance payment according to Section 119 of Labor Protection Act;
(1) performing his/her duty dishonestly or intentionally committing a criminal offence against the Employer;
(2) willfully causing damage to the Employer;
(3) committing negligent acts causing serious damage to the Employer;
(4) violating work rule, regulation or order of the Employer which is lawful and just, and after written warning having been given by the Employer, except for a serious case with no requirement for the Employer to give warning.
The written warning shall be valid of not exceeding one year from the date when the employee commits the offence;
(5) absenting himself/herself from duty without justifiable reason for three consecutive working days regardless of whether three is holiday in between;
(6) being sentenced to imprisonment by a final court judgment.
Q16：According to the Labor Protection law, What is the time limit claiming for wages and other payments?
A16：Employees’ claims for wages and other remuneration, including holiday pay, overtime pay are under the Civil and Commercial Code, period of prescription. They must be issued within two years following the termination, though the statute of limitations on claims for severance payment is ten years.
Q17：How does the Labor Protection law regulate Severance payment?
A17：Severance payment varies from 30 days to 300 days depending on the length of the employee’s working with the employer. By virtue of Section of 108 of the Labor Protection Act, an employer must pay severance pay to an employee who is terminated as follow;
(1) 120 days but less than 1 year 30 days at the last wage rate or the last 30 days’ wages for the work unit performed
(2) 1 year but less than 3 years 90 days at the last wage rate or the last 90 days’ wages for the work unit performed
(3) 3 years but less than 6 years 180 days at the last wage rate or the last 180 days’ wages for the work unit performed
(4) 6 years but less than 10 years 240 days at the last wage rate or the last 240 days’ wages for the work unit performed
(5) 10 or more years 300 days at the last wage rate or the last 300 days’ wages for the work unit performed
Q18：Does an employee entitle to any payment if the employer plans to relocate the work place?
A18：Under the Labor Protection Act Section 120, if an employer plans to relocate its place of business which materially affects the employee's or his/her family’s life, the employer shall notify the employees at least 30 days in advance to the date of the relocation. If an Employer fails to inform an employee in advance, an employer must pay a special severance pay in lieu of advance notice in an amount equivalent to 30 days pay at the latest wages rate.
Q19：As you may know, an employer must pay compensation when an employee incur sickness or injury due to work as strict liability. Is there any exception under the Workmen’s Compensation Act?
A19：By virtue of Section 22 of the Workmen’s Compensation Act, The employer shall not pay compensation in case of sufferings from injuries or sickness of the employee causes by the following cases;
(1) The employee loses self-control as the result of taking alcoholic drink, or becoming addicted.
(2) The employee willfully causes himself suffering injuries or allows other person to cause him suffering from injuries.
Q20: When an employee is working, if such employee wrongfully acts against another person, is an employer bound to be responsible for such damage?
A20: If an employee wrongfully acts against another person during the work, the employer shall be responsible for the damage.
【Q & A Lease Contract in Thailand】
Q1. Is the lease contract of an immovable property more than 3 years still effective if is made in writing but not registered with a competent authority?
A1. The lease contract of an immovable property more than 3 years which is made in writing but not registered is still valid and effective but it can be enforced only for 3 years unless it is registered with a competent official.
Q2：What are the duties and responsibilities of the lessor?
A2：The lessor is bound to deliver the property in a good state of repair, to reimburse any necessary and reasonable expenses. The lessor is liable for any defects which arise during the continuance of the contract and has to make all the repairs which may become necessary.
Q3： In case the lessor passes away, can the successor still continuously lease such property?
A3：A lease contract shall consider based on qualification of the lessor therefore the lease contract relies on specific qualification. When the lessor passes away, the lease contract shall be extinguished, the successor shall not be entitled to continuously lease such property.
Q4：In case the lessee passed away, will the lease contract be extinguished?
A4：No, unlike the lessor’s case, due to the fact that the lessee’s qualification does not rely on specific qualification therefore when the lessee passes away, the lease contract shall be transferred to the heir and the heir shall be entitled to duties and responsibilities.
Q5：Is the lease contract still effective if the leased property is being transferred to the third party?
A5：A lease of immovable property is not extinguished by the transfer of the ownership of the property. The third party shall be entitled to the rights and duties of the lessee.
【Q & A Bankruptcy in Thailand】
Q1. Please let me know about the law regarding bankruptcy proceedings in Thailand.
A1.Bankruptcy proceedings are provided for in the Bankruptcy Act of 1940 (B.E. 2483). The act was amended in 1968, 1983, 1998, and 1999.
Q2. What is the requirement for bankruptcy?
A2. The creditor may file a bankruptcy petition for bankruptcy proceedings against the debtor only if:
1. the debtor who is a natural person is indebted to one or more plaintiff creditors in an amount of not less than one million Baht or the debtor who is a juristic person is indebted to one or more plaintiff creditors in an amount of not less than two million Baht; and
2. the debtor becomes insolvent.
If the performance of contributions has been fulfilled and the assets are insufficient to cover the debts, the liquidator may also file a bankruptcy petition.
In principle, bankruptcy proceedings in Thailand are commenced if a bankruptcy petition is filed not by a debtor himself/herself but by a creditor.
Q3. Please let me know about the procedure after filing a bankruptcy petition.
A3. Firstly, the receivership order is made to a debtor by the Court. A debtor forfeits the right of the property management and disposition by the order and such right is transferred to a trustee. Next, the order is provided as a public notice, meeting of the creditors is convened, and the debtor is examined. Then the bankruptcy proceedings are transferred to composition proceedings or the bankruptcy is adjudicated. Finally, the assets are distributed and the bankruptcy proceedings are completed.
【Q & A Civil Procedure in Thailand】
Q1. Where can a plaintiff submit a plaint?
A1.A plaint shall be submitted to the Court where the Defendant is domiciled or the cause of action arose. If the plaint is a request in non-dispute case, it shall be submitted to the Court where the Applicant is domiciled or the cause of action arose.
In case of a plaint concerning property, it shall be submitted to the Court where the immovable property is situated.
Q2.What to do when anyone receives a plaint?
A2.When someone receives a complaint, he has to file an answer in writing, clearly stated whether he admits or denies the whole or part of the allegations and his reasons for denial, with the Court within 15 days from the date of receive and may also make a counter-claim in his answer.
Q3.What will happen if the plaintiff does not appear on Court on the day of hearing the case?
A3. On the hearing day, if the plaintiff does not appear on the Court, he shall be deemed in default of appearance. When the Plaintiff is in default of appearance, the Court shall dispose of the case unless the Defendant informs the Court on the hearing day that he desires to proceed the case.
Q4.Is a client required to appear on Court for any civil procedure?
A4. No, the law does not require the client to appear on Court. The client can make deed of appointment for a lawyer to complete all process, however, the client may have to appear on Court if his name is on a witness list.
Q5.Can Court procedures be conducted in another language other than Thai?
A5.All proceedings carried out by a Court relating to the trial and ruling of civil cases shall be in Thai language. Except for The Central Intellectual Property and International Trade Court, the parties can have an agreement to use foreign language.
【Q & A Trademark in Thailand】
Q１.What right or protection does a trademark owner have?
A１.Under Thai trademark law, an owner of trademark shall have right to use the registered trademark exclusively (exclusive right) and right to prevent/ to bring legal proceeding to the court/ to recover damages for the infringement (prohibitive right).
Q2.How long does the Registrar take to examine availability of a trademark?
A2.After an application is submitted, the Registrar will carry out an examination to verify that an application meets the requirement of Trademark Act (Distinctiveness, Not prohibited by law, Not identical or similar to registered trademark). The examination process usually completed within 7-9 months from date of filing.
Q3..Is it necessary to do research whether my trademark is identical or similar to a registered trademark before submitting an application?
A3.Identity, similarity, or logo searches can be performed prior to filing an application at http://www.ipthailand.go.th/tmonline.html
In determining availability, it is also important to check classes of the product that are associated with the classes of product which protection is sought. A trademark shall not be identical or similar to a registered trademark in the same class. We, thus, recommend you checking availability of a mark prior to filing a trademark application.https://www.foreignsearch.jpo.go.jp/
Q4. How much is the official fee to submit trademark application form?
A4. The list of kind of product in class determines the number of application to be filed and the official fee to be paid. Cost for trademark filing are 1,000 Baht for each kind of product (In case of not more than 5 kinds) designated in an application and 9,000 Baht for more than 5 kinds of product which protection is sought.
Q5. Is it necessary to do research whether my trademark is identical or similar to a registered trademark before submitting an application?
A5. Identity, similarity, or logo searches can be performed prior to filing an application at http://www.ipthailand.go.th/tmonline.html
In determining availability, it is also important to check classes of the product that are associated with the classes of product which protection is sought. A trademark shall not be identical or similar to a registered trademark in the same class. We, thus, recommend you checking availability of a mark prior to filing a trademark application.
Q6. What are the requirements for trademark to be registrable?
A6. A trademark which is registrable must be distinctive, not be prohibited by the Trademark Act and not be identical or confusingly similar to another registered trademark.
Q7. What right or protection does a trademark owner have?
A7. Under Thai trademark law, an owner of trademark shall have right to use the registered trademark exclusively (exclusive right) and right to prevent/ to bring legal proceeding to the court/ to recover damages for the infringement (prohibitive right).
Q8. How long does the Registrar take to examine availability of a trademark?
A8. After an application is submitted, the Registrar will carry out an examination to verify that an application meets the requirement of Trademark Act (Distinctiveness, Not prohibited by law, Not identical or similar to registered trademark). The examination process usually completed within 7-9 months from date of filing.
【Q & A Company law in Thailand】
Q１. Please give an example of the differences between partnership and company limited?
A１.1. The number of shareholders
- In partnership, the number of shareholders shall be not less than 2 people. But in Company limited, the number of shareholders shall be not less than 3 people.
2. The liability of partner/director
- In partnership, at least 1 partner must have unlimited liability.
- In company limited, all directors shall have limited liability.
Q2.After the statutory meeting is held, within how many days does the company have to register the company establishment?
A2.The company has to be registered within 3 months. If registration does not take place within 3 months after the statutory, the company is not formed.
Q3.What are the details that must be contained in the company establishment application?
A3.The application must contain the following information:
1. The total number of shares subscribed or allotted, distinguishing ordinary shares and preference shares.
2. The number of ordinary shares or preference shares allotted as fully or partly paid-up otherwise than in money, and in the latter case, the extent to which they are so paid up.
3. The amount already paid in money on each share.
4. The total amount of money received in respect of shares.
5. The names, occupations and addresses of the directors.
6. If the directors have power to act separately, their respective powers and the number or names of the directors whose signature is binding on the company.
7. The period, if any has been fixed, for which the company is formed.
8. The address of the principal of business office and of all branch offices.
【Q & A Copyright law in Thailand】
Q1.What are the exclusive rights which the owner of copyright can exercise?
A1.Copyright gives its creator various exclusive rights as evidenced in Section 15 of Copyright act;
(1) Reproduce or adaption
(2) Communication to public
(3) Letting for hire of the original or the copies of a computer program, an audiovisual work, a cinematographic work and a sound recording
(4) Giving benefits accruing from the copyright to other person
(5) Licensing the rights mentioned in (1), (2) or (3) with or without condition, provided that the conditions shall not unfairly restrict the completion.
Q2.how long is the term of copyright protection?
A2.According to Section 19 of Copyright Act, a copyright is valid for the life of the creator, plus 50 years after the death of creator. When the creator is juristic person, protection extends for 50 years from the date of creation or first publication.
Q3.What is the First-sale doctrine?
A3.A form of the First-sale doctrine, also known as the Exhaustion of right, is evidenced in Section 32/1 of Copyright act. It states that lawful distribution of an original copyright work or its copies by a person who has lawfully obtained the ownership of such work or copies is exempt from copying infringement.
For example, if a book owner wants to sell used book needed to request a license from the author, that would lead to a problem. The legal solution is to assume that when that owner purchased a book, the author’s exclusive rights was consumed.
Q4.How does the Seizure and destruction of counterfeit goods provision amend?
A4.Section 75 has been amended to allow the Court to order that infringing materials be destroyed at the expense of the infringer. Previously, an owner of a copyright had to take possession of infringing materials, as evidenced in Section 75 all things made or imported into the Kingdom which constitute an infringement of copyright by virtue of this act and the ownership of which still vests in the offender pursuant shall devolve on the owner of copyright; provided that all things used for committing the offence shall be forfeited.
Q5.What are the exceptions of infringement of copyright?
A5.By virtue of Section 13 of TRIPs, Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. Thailand has adopted this principle to be domestic law as evidenced in Section 32 of the Copyright act. It clearly states that an act against copyright work by virtue of this Act of another person which does not conflict with a normal exploitation of the copyright work by the owner of copyright and does not unreasonably prejudice the legitimate right of the owner of copyright shall not be deemed an infringement of copyright.
Subject to the provision of paragraph one, any act against the copyright work in paragraph one shall not be deemed an infringement of copyright provided that the act is each of the followings:
(1) research or study of the work which is not for profit;
(2) use for personal benefit or for the benefit of himself and other family members or close relatives;
(3) comment, criticism or introduction of the work with an acknowledgement of the ownership of copyright in such work;
(4) reporting of the news through mass-media with an acknowledgement of the ownership of copyright in such work;
(5) reproduction, adaptation, exhibition or display for the benefit of judicial proceedings or administrative proceedings by authorized officials or for reporting the result of such proceedings;
(6) reproduction, adaptation, exhibition or display by a teacher for the benefit of his teaching provided that the act is not for profit;
(7) reproduction, adaptation in part of a work or abridgement or making a summary by a teacher or an educational institution so as to distribute or sell to students in a class or in an educational institution provided that the act is not for profit;
(8) use of the work as part of questions and answers in an examination.