Examining Employment & Job Seeker Protection Act

Examining Employment & Job Seeker Protection Act

In this month’s article, we shall examine certain aspects of the Employment & Job Seeker Protection Act (1985.) We shall begin by explaining the main legal requirements which must be met before a license can be granted to run an overseas employment agency, we shall then move on to explaining aspects of the legal regime which applies when such service providers send Thai nationals to work overseas. We shall then conclude by looking at what legal requirements apply to overseas employment service providers after a job seeker arrives in their country of employment. 

Legal Requirements for Granting of an Overseas Employment Service License:

According to the Act an applicant for the overseas employment license must be a company limited or public company limited. Thai nationals must hold at least 75% of the total capital of the applying company and at least 75% of the shareholders must be Thai nationals too. The applicant’s registered and paid up capital must meet minimum amounts as prescribed by the Ministerial Regulations, but in any case it must not be less than one million Baht. Furthermore, the applicant must not be a licensee under the employment license and cannot be under a suspension of their employment license or have their employment license revoked. In addition to the above requirements, an applicant must also submit a deposit with the registrar as a security for compliance with the Act; this deposit is not less than five hundred thousand Baht and can be in the form of cash, Thai government bonds or a letter of guarantee from a bank. The security deposit can be returned to the applicant when their employment business has been terminated and their legal obligations under the Act are fully complied with.

Besides the above requirements, the manager of the applicant must be a Thai citizen who is at least 20 years of age and they must also pay a security deposit to the registrar to ensure their compliance with the Act. Moreover, the manager of the applicant also needs to meet a number of other conditions, these include not being under a suspension of their employment license or being subject to a revocation of their employment license, not being incompetent or quasi-incompetent and not having been sentenced by a final judgment of the Court or any legitimate order to a term of imprisonment for any offense. Moreover, the manager must not be a person considered to have defective morals or be involved in disgraceful behavior.

Legal Framework for overseas employment service providers sending Thai Nationals to Work Abroad:

When an overseas employment service providers (Licensee) wishes to send Thai nationals to work overseas it must comply with a number of legal requirements under the Act. One of the most important requirements is for the Licensee to submit the employment contract between the overseas employment licensee or its agent and the Thai job-seeker, together with the conditions relating to their hire of services which are concluded between the overseas employer or its authorized agent. These documents must be submitted before the Thai job seeker is sent overseas to take up the job. The Licensee must also organize for the job-seeker to undergo a medical exam in accordance with the rules and procedure as specified by the Director-General of the Department of Employment. The law also requires that the job seeker must undergo skill testing in accordance with the rules notified by the Director-General of the Department of Skill Development. If the job seeker passes the skills testing they will then need to undertake a training course on the laws, custom and tradition of the country in which the job-seeker is going to work. The Licensee must also submit a list detailing the name and work place of the job-seeker, along with a copy of their employment contract to the Central Employment Registrar within seven days from the departure date of the job-seeker.

Within 15 days of when the job seeker arrives in the overseas country where they will work, the Licensee is required to provide the Thai Labor Office with a list specifying the name and work place of the job-seeker. If there is no the Thai Labor Office in the country where the job-seeker has been sent then the Licensee must instead send their notification to the Royal Thai Embassy or the Royal Thai Consulate in that country.

In addition to the above requirements, the Licensee is also required to organize the overseas employer who concludes the hire of services contract with a job-seeker to send money to the Job-Seekers Working Abroad Fund. If the Licensee is unable to organize the overseas employer to do so, it has the duty to pay such money to the fund instead.

Post Arrival Requirements on Licensee:

If after the job-seeker arrives overseas but it turns out that they don’t have the job as mentioned in their employment contract then the Licensee must arrange for the job-seeker to return to Thailand. In such case the Licensee is responsible for the job-seeker’s travel, accommodation, meals and other necessary expenses until they return to Thailand. The Licensee must also submit a written notice to the Thai Labor Office in the country within fifteen days informing them of the situation. If there is no the Thai Labor Office in the country where the job-seeker has been sent then the Licensee must instead send the notice to the Royal Thai Embassy or the Royal Thai Consulate in that country. A copy of this notice must also be sent to the Central Employment Registration Office.

If a job-seeker arrives overseas, but it turns out that the actual wage, position or other benefits are different from those specified in the employment contract, the job-seeker can request the Licensee to arrange for them to return to Thailand or the job seeker can stay and work under these different conditions. If the job seeker wishes to return to Thailand they must notify the Licensee or its agent in the country within 90 days of when they acknowledge the differing conditions of their employment. If the Licensee has no presence in the country then the job seeker can instead notify the Royal Thai Embassy or the Royal Thai Consulate in that country.

If it appears to the Central Employment Registrar that there are circumstance that warrant the Licensee to arrange a job-seeker to go back to Thailand because the job doesn’t exist or the actual benefits/conditions are different from what is specified in the employment contract , but the Licensee fails to arrange such repatriation, the Central Employment registrar will arrange for the job-seeker to return Thailand by advancing money from the Job-Seekers Working Abroad Fund and it will then ask for such monies to be repaid by the Licensee within a determined period. If the Licensee fails to refund such money within the set time, the Central Employment Registrar will deduct such amount of money from the deposited security lodged by the Licensee when they applied for their license.

If a job-seeker has received wages, or other benefits as specified in their employment contract, but they fail to perform their obligations under the contract, the Licensee won’t be responsible for arranging their return to Thailand, but they will need to inform the Thai Labor Office (in the foreign country) of this matter within fifteen days. If there isn’t a labour office in the country, then the Licensee must instead inform the Royal Thai Embassy or the Royal Thai Consulate.

Should you require any legal advice on job seekers working overseas or the Employment & Job Seeker Protection Act then please contact us at Dharmniti Law Office Co., Ltd. 2/2 Bhakdi Building 2nd Floor, Witthayu Road, Lumphini, Pathumwan, Bangkok, Tel : (66) 2680 9710, Email: ryan@dlo.co.th or info@dlo.co.th