Following the COVID-19 pandemic, there have been emerging trends among employers in Thailand to require or allow their employees to work flexibly outside of their workplaces, whether from their own home or elsewhere. Although the risks from the COVID-19 virus have subsided, these trends are already prevalent and should continue as a normal way of work into the near future. To facilitate remote working arrangements and bring benefits to employers by reducing costs and promoting employee welfare, on 28 December 2022, the Thai Parliament approved an amendment to the Labour Protection Act B.E. 2541 (1998) ("Amended Act") to facilitate agreements between employers and employees on remote working. The aim of this Amended Act is to improve the protection of employees, aligning it with global trends and providing alternatives for employers and employees regarding employment arrangements.
In summary, the Amended Act will add a new Section 23/1, and its key elements are summarized as follows:
- For the benefit of the business operations of employers and the promotion of work and quality of life of employees, or in cases of necessity, the employer and employee may agree to allow the employee to perform work under their employment, or as agreed with the employer, that can be done outside of the business premises or office of the employer with convenience, to be performed at the employee's home or residence or anywhere remotely using information technology.
- Employers must prepare the agreement on the arrangement in writing or in the form of electronic data that is accessible and reusable without altering its meaning, and may include the following details:
- Commencement and end dates
- Normal working days and hours, rest periods, and overtime work
- Rules of overtime and holiday work, and types of leave
- Scope of work of the employee as well as control and supervision by the employer
- Duties to procure and provide work equipment and tools as well as necessary expenses arising out of the work.
- The Amended Act has introduced a "right to disconnect" to remote working employees, i.e., after the end of the normal working hours as agreed between the employer and employee or completion of the work assigned by the employer, the employee has the right to refuse any communications through any channel from the employer, chief, supervisor, or work inspector, unless consent in writing is given by the employee in advance.
- Employees who work from home, residence or from anywhere using information technology, must have the same rights as employees who perform work at the workplace or office of the employer.
The Amended Act is pending royal endorsement and will subsequently be published in the Royal Gazette. It will become effective 30 days after its publication in the Royal Gazette.
Based on the current wording of the Amended Act, work from home/remote work under this provision is not mandatory. Rather, the Amended Act aims to facilitate agreements between employers and employees regarding such arrangements.
As many employers have already implemented remote working in some form under the existing legal framework, it may be useful to consider the following points in light of this new Amended Act:
- Can employers unilaterally require employees to work remotely after the Amended Act comes into force, or is a written agreement legally required?
- Must remote working agreements fulfill all conditions mentioned under Section 23/1, e.g., the remote working must be for the benefit of the business operations of employers and the promotion of work and quality of life of employees, or it must be cases of necessity for it to be legally valid and enforceable?
- Can the agreement under Section 23/1 only be done in writing or in electronic form as required by Section 23/1? Is implied consent acceptable?
- During the employee's right to disconnect period, can employers contact remote working employees to work without their consent? What would be considered as the employee giving consent? Can employers contact employees during their overtime hours?
In light of the above, it remains to be seen if and when any future guidelines or rules on this remote working issue and the Amended Act will be issued to clarify the above and other relevant matters.