Questions On Labour Laws, Severance Pay, Getting Back Old Work Permit And More…

[Bredbury Blue]

The best documents I have been able to find to date to help my case are these (which is convenient also, as my company is a BOI company.

http://www.boi.go.th:8080/issue/200506_16_6/14.htm and http://www.boi.go.th/english/how/labor_iss...t_addresses.asp

[Bredbury Blue]

Thanks for everybody’s help with this to date and I thought you might be interested to hear how my situation with my employer and my upcoming retrenchment is going.

I currently have two arguments with them, which I am waiting for their lawyers in The States to reply upon, which are:

1. Where they are attempting to override Thai law with their ‘corporate policy on severance’, I have advised them that the Labour Protection Act B.E. 2541 (1998) controls employment of all workers in the Kingdom of Thailand, that Foreigners working in Thailand are subject also to the Alien Employment Act B.E. 2521 (A.D. 1978), and reminded them that their own corporate policy states, “Any severance program mandated by local law in foreign operating locations supersedes this policy…”.

I am waiting for their response but I reckon I have won that argument.

2. Where they are attempting to pay me a reduced “Wage” as severance pay, I have advised them that:

2.1. Chapter 11 Severance Pay of the Labour Protection Act B.E. 2541 (1998) refers to "if the Employee has worked for an uninterrupted period of one year but less than three years, he or she shall be entitled to receive payment of not less than his or her last rate of Wages for ninety days… ".

2.2. Section 5 of the Labour Protection Act B.E. 2541 (1998) defines "Wages" as "agreed money between an Employer and an Employee to be paid in return for work done under a Contract of Employment for regular working periods on an hourly, daily, weekly, monthly,…and includes money to be paid by an Employer to an Employee on Holiday or on Leave during which the Employee does not work but is entitled to the money under this Act", while Chapter 5 thereof refers to “Wages” and “Wages for a Working Day” being paid by the employer for the Working Day, “Traditional Holiday”, “annual Holidays” and “Sick Leave”.

2.3 Therefore my argument is that “Wages” are the agreed amount of money paid for a working day, holiday or sick day, and as the Company pays me a Wage on those days that includes my (i) Base Salary, (ii) Foreign Resident Allowance, (iii) Personal Transportation Allowance and (iv) Energy Allowance, it is therefore wrong for the Company to interpret “Wages” as being only (i) Base Salary but must include (i) to (iv) inclusive.

This one will be harder for me to win and I could see me ending up in the Labour court. Does anybody agree / disagree with my argument 2.1 to 2.3 or can advise of anything I have missed which will help my argument / case?

I have yet to receive my 'official' notice of termination yet so i'm trying to sort these issues out in advance.

[Bredbury Blue]

Could anybody, particularly Sunbelt, offer advice on the next stage in my current predicament?

In my earlier posts I was referring to when I leave my current employer (a BOI company), of reactivating my own dormant consulting company (basically it was 4 Thai staff – i.e. my wife and her 3 family members, and i) to get back the work permit I had held for six years until 30 October 2006, and the best way of continuing holding the non-Imm visa I had held for the same period, and would it be best to go for a non-Imm O-marriage visa instead of non-Imm B I have currently. I need to retain the visa, as I want to apply for permanent residency in December.

I have now decided that I am definitely going to reactivate my own company (dormant since 3rd quarter last year) very shortly and apply for the work permit but again with a non-Imm B. Possibilities are:

1. Apply now to add my managing director job with my own company as a second job/company to my existing work permit and then remove my current employer/job of it after I have left them.

2. Wait until I have left them, return their work permit and apply for a new work permit for my managing director job with my own company.

Advice I have received from a lawyer colleague is “Your case is quite complicated and detailed. To solve your problem may take some time in addition the new regulation make things more difficult. Moreover, your current company is BOI granted. If you require applying work permit under your own company again, which does not currently operate nor employ Thai staff, it is very hard to approve. In addition, accord to new visa regulation, if your qualification does not meet the requirement, the Immigration Bureau will not consider the visa extension application in Thailand.”

My immediate thought is to start immediately operating my own company by merely paying my wife and one other staff member a salary commencing for July so that the company commences the payroll and income tax/social security (note that previously my work permit through my own company stipulated that I had to have 4 Thai staff for my work permit but on reapplication I hope to get away with one Thai staff based on comments I’ve read on this website of being a ‘consultant’).

Does anybody have any advice on the best way I should approach this so that in the coming weeks when I leave my current employer I can go straight in to working for my own company again with work permit/visa, and would option 1 or 2 or any other route be best for me?

[Sunbelt Asia]

1. Apply now to add my managing director job with my own company as a second job/company to my existing work permit and then remove my current employer/job of it after I have left them.

The Thai labor Dept in BKK has stated on record before that they would like to see you are employed for 6 months at the second job with a work permit before leaving the first job, otherwise they will suspect you have committed fraud against Thailand. The logic... You had gotten a second work permit combined with a extension of stay that was granted for the first job. As you did not need to qualify for the extension of stay for the second job, this was where you defrauded the Country of Thailand by using a loophole. You applied for the work permit on the second job knowing you were leaving the first job. This will not go over well with your plan to apply for permanent residence.

My immediate thought is to start immediately operating my own company by merely paying my wife and one other staff member a salary commencing for July so that the company commences the payroll and income tax/social security (note that previously my work permit through my own company stipulated that I had to have 4 Thai staff for my work permit but on reapplication I hope to get away with one Thai staff based on comments I’ve read on this website of being a ‘consultant’).

With the title "Consultant" the requirememt of one Thai employee per work permit was old rules for the extension of stay based on business.( Before Oct 1st 2006) New rules require 4 Thai employees for " Consultant" applying for the extension of stay based on business.

As for the Labor Dept in BKK, no Thai employees are required. However in your province as stated before they have other rules( Kingdom within a Kingdom) they require 4 Thai employees.

Does anybody have any advice on the best way I should approach this so that in the coming weeks when I leave my current employer I can go straight in to working for my own company again with work permit/visa, and would option 1 or 2 or any other route be best for me?

If your wife has a salary of 40K per month, you should hand in the work permit when they terminate you. Apply for the change of visa to a 90 day "O" visa and then do the one year extension of stay based on marriage. I would apply for the new work permit at the Labor Dept for the second company after I handed in the old "BOI" work permit.

www.sunbeltasiagroup.com

[Bredbury Blue]

Question for the lawyers on here / Sunbelt:

My dispute with my ex-company is entering an interesting phase.

Though that company provided me with a work permit and they made payment to me (not their USA company), is it possible for me to be employed in Thailand but not covered by the Labour Protection Act of Thailand?

Reason i ask is that their arguement is that i am employed here in Thailand but under the laws of another country - would that arguement hold up here?