THAILAND Trends and Developments Contributed by: Nam-Ake Lekfuangfu, Theeranit Pongpanarat and Panitan Pruksakasemsuk, Baker McKenzie (Bangkok)
from compensation and benefits to immigration, cor - porate tax, cybersecurity, and data compliance and data privacy issues, among others. A pressing legal issue is whether gig or contingent workers are legally considered employees of their hirers. In this regard, there are contrasting views between Thailand’s National Human Rights Commis - sion (NHRC) and the Thai labour courts to consider below. The recent ruling by NHRC in 2024 on the status of delivery riders highlights this issue. The NHRC ruled that riders are employees of the digital platform own - ers, not merely their business partners, and thus have the employer-employee relationship in accordance with the Thai labour laws, including being entitled to rights and benefits under such laws as employees. Several factors were taken into account by NHRC, including the fact that NHRC views that the digital platform owners could have supervisory control over the raiders through the terms and conditions of ser - vices, such as requirements on the work acceptances, working hours, and uniforms, whereby non-compli - ances by raiders could subject them to penalties such as suspension of services. Additionally, it was deemed that the riders do not have a say or stake in the operation of the digital platform business nor its profits and losses, which would be the case of a business partner. Interestingly, the NHRC’s ruling and rationale were based mainly on the Thai Constitution, international treaties, and foreign court rulings. It should also be noted that the NHRC’s ruling lacks legal standing and is not legally binding. In contrast, the Thai labour court, in some recent court rulings, has decided in similar cases that a platform worker is not considered an employee of a platform operator under Thai labour laws. While the two contrasting views involve different facts, they reflect ongoing legal debates and complexities around non-traditional work models, which can trig -
ger several compliance issues, risks and uncertainty for employers. To formally address these alternative workforces, a new legal framework is being developed in Thailand in the form of the draft “Promotion and Protection of Independent Worker Act.” The draft act aims to pro - vide broader coverage and protection to all independ - ent workers, especially “semi-independent workers,” which includes platform workers. The draft proposes to help independent workers by providing certain ben - efits and protections, eg, setting up a fund to provide certain assistance and loans to independent work - ers, as well as providing them with the right to form organisations. However, it remains to be seen whether the draft act can strike the right balance between the interests of gig workers and other relevant parties. Continued trend in flexible work arrangements We have seen employers in some countries consider - ing allowing their employees to work remotely 100% if they wish to do so, while at the same time, reducing their compensation and benefits, given that their cost of living and travelling expenses may not be as high as before. Also, the emerging trend of non-traditional hiring methods involving flexible and agile workforces, also known as the “modern workforce,” is expected to continue, which would give rise to further legal issues for employers to consider. In April 2023, a new amendment to the Labour Protec - tion Act (“LPA”) to facilitate remote working in Thai - land was introduced through the new Section 23/1 and came into effect, aligning with the global trend and providing alternatives for employers and employ - ees to agree on remote working arrangements. Effectively, Section 23/1 states that employers and employees can come to an agreement allowing the employee to perform work that can be done outside of the business premises or office of the employer with convenience, under their employment, or as agreed with the employer to be performed at the employee’s home or residence or anywhere remotely using infor - mation technology. In this regard, employers must prepare a written agreement that includes details such as the start and end dates of the work period; work - ing days and hours, rest periods, and overtime work;
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