Penalties for Non-Compliance under the Labour Protection Act
In this article, we shall examine the penalties that apply to breaches of the Labour Protection Act (LPA). From reviewing chapter 16 of the LPA which encompasses sections 144 up to 159, one becomes aware that the overwhelming majority of penalties apply to employers, moreover, the writer would also like to emphasize to the readers that the legal sanctions which apply to non-compliance with this Act can be quite serious and include imprisonment in serious cases. In examining this topic, the writer will also consider other related issues such as the suitability and weaknesses of the sanctions provided under this legislation.
Penalties & Enforcing Compliance with the Labour Protection Act
Section 144 of the LPA is arguably one of the main provisions in the Act which covers penalties because of the number of sections it provides penalties for as well as the fact that the sanctions it stipulates are quite heavy. Indeed, paragraph 1 of this section provides that if an employer breaches certain parts of the Act then they can be subject to a term of imprisonment not exceeding six (6) months or a fine not exceeding 100,000 Baht (or both). The following are short list of sections which are covered under section 144 in relation to compliance penalties:
Section 38 – An employer must not allow their female staff to work on scaffolding which is 10 meters or more off the ground or producing or transporting explosives or inflammable materials unless the conditions of work are not hazardous to the employee’s health or body.
Section 49 – An employer is not permitted to have an employee aged under 18 years of age perform work which involving stamping metal or smelting, blowing, casting or rolling metal.
Section 50 – An employer is not permitted to have an employee aged under 18 years of age perform work in a slaughterhouse or gambling house.
Besides s.144, Chapter 16 also contains a number of other sections which provide a range of penalties, some of the heaviest penalties can be found under section 148 which provides for up to one year’s jail and a fine not exceeding 200,000 Baht (or both) for breaches such as an employer hiring a child aged under 15 years of age as an employee. However, many of the penalties provided under Chapter 16 are far less severe, indeed one clear example is section 149 as it only provides for a fine of not more than 10,000 Baht in the case of non-compliance by an employer.
Weaknesses relating to Penalties under the Labour Protection Act
After reviewing chapter 16 in the LPA, the writer is of the opinion that in some cases the penalties seem to be manifestly inadequate given the potential danger which can be caused to employees (and 3rd parties) if an employer does not comply with the law. The writer feels that some sections provided under this Act deserve much stiffer penalties to ensure that the law has the desired effect of deterring employers from breaching the LPA. Some examples of this issue are discussed below in relation to the following sections:
- Section 39 (prohibiting pregnant women from doing certain types of work) provides a strong example of inadequate penalties. In the writers opinion, violation of section 144 (which covers breach of section 39 should be subject to greater fines and increased terms of imprisonment because of the seriousness of the risk to the health & welfare of an innocent third party (the child) if the law is not complied with.
- Another example can be found with section 144 (para 2) which provides that if an employer violates certain sections of the Act thereby causing their employee to suffer physical or mental injury or death then they shall be punished by imprisonment not exceeding one (1) year or a fine not exceeding 200,000 Baht (or both). In the case of death of an employee due to non-compliance with the Act, the writer contends that a one (1) year term of imprisonment is too short and does not provide a sufficient deterrent and that this period should be increased given the potential damage that an employee can suffer (i.e. death) if the law is not followed.
- A more minor example of inadequate penalties can be seen with section 145 which provides that if an employer fails to comply with section 23 of the Act which requires an employer to announce the normal working hours to their employees (i.e. start & finish times) then they are subject to a fine not exceeding 5000 Baht. The writer feels that fines of this size are highly likely to be insufficient and that they need to be increased to bring them more into line with the Thai economy in 2015.
Weaknesses in relation to penalties under the Act are also evident in other sections in chapter 16. Indeed section 147 of the LPA provides a good example of how penalties under the Act need to be reformed as this provision stipulates that if a person breaches section 16 of the Act which prohibits an employer, chief of staff, supervisor or inspector from sexually harassing employees then they can be subject to a fine of up to 20,000 Baht. The writer feels that this section’s effectiveness is undermined due to several key factors including:
- The Act fails to define what conduct would constitute ‘sexual harassment’ i.e. would it include a boss continually asking his subordinate female staff out to a private dinner or social event? What is the meaning of this term? Without this clarity how can the penalty provided under this section be applied consistently and fairly and more to the point, how people in the workplace (both employers and employees) know exactly what types of conduct constitutes ‘sexual harassment’.
- Given the potential gravity for damage to an employee coupled with changing social attitudes in Thailand in the last ten years, the writer feels that the penalty imposed by this section is somewhat inadequate and that more serious punishments should apply to this crime as it can result in an employee suffering both serious physical and mental damage (in certain cases).
Employers that are Juristic Persons
As noted above, violations of many sections of the LPA can attract prison sentences, but in the case of an employer being a juristic person such as a private company limited, this raises an important question as who will go to jail in the case of a breach/violation. With regard to this issue, section 158 clarifies the issue by providing that if the offender is a juristic person, and such violation was caused by an order or action of any person, or an individual neglecting an order or their duty as required by the Managing Director or of any person who is responsible for carrying out the business of the juristic person, then such person will be penalized according to the provisions prescribed for such violations (including imprisonment). Given the abovementioned liability, it is vitally important for directors and compliance managers of companies to be careful that they do not violate the LPA lest they be subject to a term of imprisonment for not following the law.
Should you require any legal advice on Thai law in the coming year then please don’t hesitate to contact us at Dharmniti Law Office Co., Ltd. 2/2 Bhakdi Building 2nd Floor, Witthayu Road, Lumphini, Pathumwan, Bangkok, Tel : (66) 2680 9710, Email: email@example.com or firstname.lastname@example.org
 Sections 10, 22, 24, 25, 26, 37, 38, 39, 39/1, 40, 42, 43, 46, 47, 48, 49, 50, 51, 61, 62, 63, 64, 67, 70 71, 72, 76, para 1 of s. 90, 107, para 1 of s. 118, 120,121 and 122.
 See above list of sections.
 This section covers violations of sections 52, 55, para 2 of s. 75, para 2 of s.90, 110 and 116 of the LPA.
 Sections 37, 38, 39, 39/1, 42, 47, 48, 49 and 50.