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Update on the management of foreign workers policy

 

January-March 2020

1. The management of foreign workers policy

Regarding the management of foreign workers in Thailand, particularly the migrant workers who have undergone Nationality Verification and whose work permits are going to expire in late 2019 and 31 March 2020, the cabinet resolution has been issued on 20 August 2019 to allow migrant workers from three countries (Cambodia, Laos and Myanmar) and their dependents including their children to continue to work in Thailand. Migrant workers who have been through the Nationality Verification and issued ID cards and work permits and are allowed to stay in the country for not longer than two years with the one-year visa and two-year work permits. 

For those whose work permit have expired before 31 March 2020 shall be allowed to work until 30 September 2021 while those whose work permits will expire from 31 March-30 June 2020 shall be allowed to work until 31 March 2022.  Their employers are required to submit the name lists of their workers online and then pay the fees to renew the work permits and visas at the service counter as well as to have them have health checkup and buy them health insurance from public hospitals. The migrant workers who have already been registered with the social security system are exempted and have health checkup from private hospitals. They can then ask for a visa stamp at the Immigration Office and apply for work permits online as well as to apply for non-Thai citizen cards (pink card) at the District Office. Several provinces have already set up One Stop Service (OSS) Centers which can handle all the services concerning the visa stamp, work permit application and pink card application. They shall operate until 19 March 2020. Meanwhile, 1,202,709 migrant workers have been name-listed and 735,714 have received visa stamps (as of 17 March 2020) and 688,447 have received work permits.  

In response to the outbreak of Covid-19 however, the One Stop Service (OSS) Centers have been shut down and the workers have to approach different concerned authorities since 19 March 2020. Then on 20 March 2020, Committee for the Management of Foreign Workers Policy agreed to allow migrant workers and their dependents to continue living in the Kingdom temporarily until 30 June 2020 and to allow the migrant workers to continue working until 30 June 2020. The Ministry of Labor is supposed to issue a Ministerial Regulation to pardon the workers whose work permits have already expired to allow them to work until 30 June 2020. Also, the name lists shall be used as database for the Department of Employment to issue a document used in lieu of work permits. Meanwhile, the Ministry of Interior shall issue a Ministerial Regulation to allow the migrant workers whose right to stay in the Kingdom has expired to be able to continue living here temporarily until 30 June 2020 and to waiver the overstay fine.  

On 24 March 2020, the cabinet agreed as proposed by the Ministry of Labor to adapt the management of  migrant workers policy for 2019-2020, from 1 April-30 June 2020, to give leniency to migrants from Cambodia, Laos and Myanmar who have acted on the 20 August 2019 cabinet resolution and their names have been included in the name lists submitted to the Ministry of Labor or submitted online within 31 March 2020 by their employers or the persons who have imported them and who have failed to applied for the right to stay in the Kingdom in time including their dependents. According to this resolution, they shall have more time until 30 June 2020 to renew their work permits and visas, although their name lists have to be submitted within 31 March. Pending the process, they are allowed to live and work temporarily and to be exempted from overstay fine. 

2. MoU imported workers

Until now, the MoU import system is complicateก for both Thailand and the countries of origin. It has caused much delay and cumbersome process. For example, in Thailand, after the submitting the name lists of workers to be imported, the employers have to apply on behalf of the migrant workers for work permits at the Provincial Office of Employment. After receiving the permits, the Department of Employment shall coordinate with the Ministry of Labor to contact the Thai embassies in the countries of origin or border checkpoints to issue the visas. The process is time-consuming. If the employers or the recruitment agencies want to rush through the process, they have to take the documents from the Provincial Office of Employment and to coordinate by themselves with the Department of Employment which causes more burden in terms of the travel.  

Until now, Thailand and Myanmar have been attempting to minimize glitches in the MoU process and three improvements have been made as to the MoU labor import including;  

  1. Create an additional Post-Arrival and Reintegration Center for Migrant Workers in Ranong: Initially, the center could only handle migrant workers in fishery sector. In early 2020, it has expanded its services to cover all migrant workers imported via the MoU scheme.  
  2. The Department of Employment has streamlined procedure of application of work permit by the employer on behalf of their workers and issued written instructions to ensure the Provincial Office of Employment or the Employment Offices in Bangkok can give visa stamps to the workers imported via the MoU scheme. This helps to reduce the process the employers have to handle.  
  3. Myanmar has set up more offices to process the employment contract between the employers and their existing migrant workers. The contracts can be signed at the presence of the officials at the labor center in Myawaddy and Victoria Point. Previously such procedure has to be made in Yangon. It helps to reduce time and minimize travel of the employers and the migrant workers making the process more convenient.  

Nevertheless, as a result of the Covid—19 outbreak, Myanmar has decided to suspend the export of workers to other countries. Meanwhile, Thailand has also suspended giving visas to workers imported via MoU scheme until the situation will get better. 

3. Prohibited work for migrants

According to the Royal Ordinance Concerning the Management of Foreign Workers’ Employment, the Minister of Labor could issue Notification to bar migrants from certain types of work per its Section 7 which states that;  

“The Minister, with approval from the Committee may issue an announcement concerning the types of work prohibited for foreign workers in any area, any time, which could be fully prohibited or prohibited under conditions, as the case may be. 

The announcement concerning the provisions in paragraph one shall be in regard to the national security, occupation opportunity of Thais and demand for foreign workers as necessary for the development of the country.” 

Provisions on prohibited work apply to migrant workers who apply for work permits invoking Section 59 of the Royal Ordinance including migrant workers imported via the MoU scheme or migrant workers who have been regularized through the MoU scheme in special cases. Until now, there has been no Notification made by the Ministry of Labor as to the prohibited work for migrants and as a result, the Royal decree prescribing work relating to occupation and profession in which an alien is prohibited to take 1979 still applies. It causes much impact on the employment opportunity of the migrant workers, particularly migrant workers in construction sector and grocery stores since the Royal Decree still bars migrant workers from taking construction jobs or selling in stores.    

Latest update, on 11 March 2020, the Committee on the Management of Foreign Workers Policy agreed to the draft Notification of the Ministry of Labor on Prohibited Work for Migrants which spells out four categories of work prohibited for migrants including;  

Category 1: Work absolutely prohibited for migrants include 27 jobs including wood craving, driving, auction, gem cutting, beauty care, handweaving, mattress making, Sa paper making, lacquerware making, traditional Thai musical instrument making, niello ware making, gold/silver/pink gold ware, bronze craft, traditional Thai doll making, alms bowl making, handwoven silk, buddha image making, umbrella making, brokerage or agency, traditional Thai massage, cigarette rolling, tour guide, hawker, typesetter,  unwinding and twisting silk by hand, clerical or secretarial work and providing legal service.  

Category 2: Work prohibited for migrants conditionally, as certain migrants are allowed to take on these jobs in compliance with Mutual Recognition Arrangements (MRAs) including three jobs which can be taken by migrants from the countries that have such agreement with Thailand including accounting, engineering and architecture  

Category 3: Eight unskilled or semi-skilled jobs prohibited for migrants unless they work for an employer including farming, mattress making, shoe making, dressmaking, construction, knife making, hat making, clay pottery 

Category 4: Work prohibited for migrants unless they work for an employer and are allowed to enter the Kingdom per the Immigration Act under the agreement or MoU made between Thailand and foreign countries including two jobs, namely menial work and selling goods at stores. They have to be imported via the MOU which are being made between Thailand and four other countries only including Cambodia, Laos, Myanmar and Vietnam.  

Further on, the Department of Employment should ask the Minister of Labor to sign the Ministerial Notification which shall become effective sixty days after being published in the Government Gazette. 

4. Protection of workers in fishery sector

Thailand has issued the Labour Protection in Fisheries Act. B.E. 2562 (2019) on 19 May 2019 to offer protection to workers in sea fishery sector and to prevent force labor among the workers in full compliance with international standards. The law focusses on offering labor protection and occupational safety of workers in fishery sector including ensuring health readiness of the workers before taking on the work. Recruitment protection, requirement of employment contract, social and health insurance for workers in fishery sector.

On 7 January 2020, the Ministry of Labor issues the Notification on the Provision of Health Benefits and Welfare for Fishing Workers requiring that the boat owners offer the following health and welfare benefits to the fishing workers as follows;  

  1. Non-work-related health protection requires that the boat owners have to provide health protection pursuant to the Notification of the Ministry of Public Health concerning health checkup and health insurance of migrant workers 
  2. Non-work-related paid sick leave requires that the boat owners offer payment when the fishing workers are ill or suffer an injury at 50% of the highest daily minimum wage per the labor protection law. This applies when the fishing workers have to stop working to receive treatment as prescribed by the medical doctor for within 180 days/year. They should be entitled to benefits when unable to work as they stop working at the instruction of medical doctor from day one until the last day or until the day the workers resume working before the last day as recommended by the doctor.  
    If the workers are entitled to payment from the boat owners while taking a leave to receive treatment per the labor protection law, the workers shall not be entitled to the other compensation until the payment from the boat owner is stopped.  
  3. Non-work-related disability benefits requires that the boat owners offer to the workers at 30% of the highest minimum daily wage per the labor protection law multiplied by 30 days for 180 months.  
  4. Non-work-related mortality benefits requires the boat owners to pay the following;  
    1. Funeral service at 40,000 baht and the payment has to be made to the person who has evidence to prove to be the organizer of the funeral service. 
    2. Mortality benefits for fishing workers at 50% of the highest daily minimum wage per the labor protection law multiplied by 30 days for 12 months. The payment has to be made to the person specified in letter by the fishing worker as the beneficiary of the benefits. If no such letter is made, the money shall be shared equally among the descendants.  

According to the Notification, instead of paid sick leave, paid leave for non-work-related injuries, non-work-related disability benefits, and non-work-related mortality benefits, the boat owners opt to buy insurance for the fishing workers, but the benefits they are entitled to must not be less than what is prescribed in the Notification.  

At mutual agreement between the boat owners and the workers, instead of providing the benefits per the Notification, the workers could be registered into the social security system to ensure they receive the benefits. 

5. Leniency to the employment of fishing workers per Section 83 of the Royal Ordinance on Fisheries

As the National Fishing Association of Thailand demands solutions to address shortage of labor in fishery sector as it complains there is a shortage of 50,000 migrant workers to work on board, it has also proposed to the government to allow the registration of fishing workers invoking Section 83. 

On 25 December 2019, the Committee on the Management of Foreign Workers Policy reviews solutions to address shortage of labor in fishery sector by invoking Section 83 of the Royal Ordinance on Fisheries B.E. 2558 (2015) and the framework to launch the registration  workers as proposed by the Ministry of Agriculture and Cooperatives including (1) operational framework to invoke section 83 of the Royal Ordinance on Fisheries to lunch two rounds of registration including the first round for three months from January-March 2020, with three-month interval, and second round from July-September 2020, (2) the proposed solutions to address shortage of labor in fishery sector by invoking Section 83 of the Royal Ordinance on Fisheries shall be migrants who hold passports or Certificates of Identity which have yet expired.  

The decision of the Committee on the Management of Foreign Workers Policy differs from the proposals by the Department of Fisheries (DoF) concerning the migrant workers who have to apply for work permits. The DoF require that they have to be migrants who have entered the country legally including those who are holders of border pass or those with valid visa stamps The Committee on the Management of Foreign Workers Policy differs on this point and do not agree that the migrant workers who have entered using border pass should be able to apply for work permits invoking Section 83 due to the conditions about the freedom of movement and their eligibility to apply for permission to work by invoking Section 64 of the Royal Ordinance Concerning the Management of Foreign Workers’ Employment.

On 5 March 2020, the National Committee on Fisheries Policy agrees to two Draft Notifications including (1) the Draft Notification of the Office of the Prime Minister on the issuance of seabooks per the law on fishing B.E...., (2) the Draft Notification of the Ministry of Interior on an exemption to the prohibition of entry into the Kingdom of the migrants. For migrants from Cambodia, Laos and Myanmar, they can apply for seabooks to live in the Kingdom temporarily and to work with the employers in the sea fishery sector B.E....to address shortage of labor in fishery sector by invoking Section 83 of the Royal Ordinance on Fisheries B.E. 2558.