Domestic Workers & Thai Labour Law

Domestic Workers & Thai Labour Law

In this article, we shall look at domestic workers and how they are treated according to Thai labour law. To begin with we shall examine this issue from the perspective of the Labour Protection Act B.E.2541 (1998) (LPA) and its regulations, in particular we shall also look at the impact of regulation 14 and what it means for employers of domestic staff. Thereafter, we shall move onto examining how this category of workers are treated according to the Workmen’s Compensation Act BE 2537 (WCA) and the Social Security Act BE 2533 (SSA).

Treatment of Domestic Workers under the Labour Protection Act

Ordinarily most employees in Thailand are entitled to the rights and benefits prescribed in this legislation, however according to Ministerial Regulation No. 14 B.E.2555 (2012) (2) which was issued under the LPA, the following provisions of the LPA (as detailed below) are not applicable to employers employing workers who perform domestic work which does not involve business operations.

• Chapter 1- General Provisions – Sections 11/1, 12, 18, 21, and 22.
• Chapter 2- Employment of Labour in General – Sections 23-27, 31 and 33-37
• Chapter 3- Employment of Women – Sections 38-43.
• Chapter 4- Employment of Yong Worker – Sections 45-50 and 52.
• Chapter 5- Wages, Overtime Pay, Holiday Pay and Holiday Overtime Pay – Sections 53-55 and section 70 applicable only to parts not pertaining to Wages and Holiday Pay, section 57 (paragraph 2) to section 61 and sections 63, 65, 66, 68, 69, and 71-77.
• Chapter 6 – Wage Committee – Sections 78-91.
• Chapter 7- Welfare, – Sections 92-99.
• Chapter 9 – Supervision – Sections 108-115/1
• Chapter 10 – Suspension from Work – Sections 116-117
• Chapter 11 – Severance Pay – Sections 118 to 122
• Chapter 13 – Employees Welfare Fund – Section 126 to Section 138

The term ‘domestic work’ as mentioned in the regulation 14 is not defined in the LPA or the associated regulations, however in the writer’s professional opinion, this term means work of a domestic nature including work done by a maid, gardener, cook etc. Moreover, in relation to the qualification in the above mentioned regulation regarding ‘business operations’, this term is not defined in the Act, however there is case law on this issue which provides that that if the house/ premises where the domestic work is performed is also used as a place of business or a work establishment then such work would likely fall into the meaning of work relating to ‘business operations’.[1] To put it simply, I the writer would contend that the term ‘business operations’ should be interpreted to mean operations of a commercial nature which are related to generating profit for the employer.

Impact of Regulation 14 & Key Differences between Ordinary Employees & Domestic Workers

Legal Liabilities

One key difference regarding liabilities is severance pay as employees (as defined in the LPA[2]) are entitled to the severance pay in accordance with section 118 of the LPA (if they are terminated without cause) which is based on their length of service with their employer. However, for domestic workers not involved in business operations, unless their employment contract or work rules (if applicable) provides otherwise, they are not entitled to severance pay according to this section. Similarly, special severance pay is a legal entitlement for normal employees according to s. 120 of the LPA, however for domestic staff who are performing domestic work not related to business, unless their employer provides otherwise, they are not entitled to special severance pay.

Leave Requirements

Annual Leave – In relation to annual leave, both normal employees and domestic workers can enjoy their right to this type of leave under section 30 of the LPA which provides that “an Employee who has worked for an uninterrupted period of one (1) year, is entitled to annual Holidays of not less than six (6) Working Days in one year, and the Employer is obliged to fix the Holiday in advance for the Employee or as agreed by the Employer and Employee…”

Sick Leave – With respect to sick leave, both normal employees and domestic workers can enjoy their right to this type of leave under s. 32 of the LPA which provides that “an Employee is entitled to sick leave as long as he or she is actually sick”. Moreover, both types of employees are entitled to paid sick leave of thirty (30) days per year in accordance with section 57 para 1 of the LPA.

Paid Maternity Leave – This category of leave is available to female employees who fall pregnant given sections 41 and 59 of the LPA; however Regulation 14 of the LPA states that both of these sections shall not be applied to employers employing workers who perform domestic work which does not involve business operations.

Overtime

Section 24 of the LPA provides that “An Employer shall not require an Employee to work overtime on a Working Day unless the Employee’s prior consent is obtained on each occasion unless the description or nature of work requires it to be performed continuously and stoppage may cause damage to the work”. This section applies to ordinary employees but Regulation 14 of the LPA empowers employers of domestic staff to not have to comply with this section.

Treatment of Domestic Workers under the Workmen’s Compensation Act

The Workmen’s Compensation Act defines “Employee” as meaning “a person agreeing to work for an employer in return for wages irrespective of designation but excluding an employee who is employed for domestic work which is not related to business”. Hence, this definition effectively excludes applicable domestic workers from being entitled to compensation from their employer in accordance with the key clauses in this Act which relate to employee compensation.[3] Moreover, employers of domestic workers should also be aware that this legislation is not  applicable to employers who undertake non-profit activity. Hence, if a domestic worker is working privately in a home of a family as a house maid carrying our ordinary domestic duties such as cleaning, washing, cooking etc then this Act will not apply to them.

Treatment of Domestic Workers under the Social Security Act

This definition of “Employee” as used in the WCA is also found in the SSA thus, it is not necessary for applicable domestic employees to be insured given that section 33 of the SSA provides that “an Employee who is over fifteen years of age and not more than sixty years of age, shall be an insured person”.

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