Fix-Term Employment Contracts in Thailand 泰國的定期勞動契約
Some employers prefer to have fix-term employment contracts due to its advantage of not having the need to provide advance notice upon termination of the fix-term employment contract. In Thailand, it is important for an employer to understand the characteristics of a fix-term employment contract, otherwise it may be considered as a non-fixed-term employment contract.
Following are key features of a fix-term employment contract:
Term of a Contract
A fixed-term employment contract must have a definite start date and end date.
A fixed-term employment contract must not have a probation period.
Rights to Terminate a Contract Before the End Date
A fix-term employment contract must not give any party the right to terminate the
contract before the end of its term without any party being in default.
Right to Extend/Renew the Term of the Contract at the End of Its Term
A fix-term employment contract must not give any party the right to extend/renew the
term of the contract at the end of its term.
De facto Extension
After the end of a fix-term employment contract, if an employee continues to work with the employer and the employer does not object, it should be presumed that an employee is working on a non-fixed term contract.
In general, fixed-term employment contracts can only be used for certain types of work, such as:
Ø Special project which is not normal for the business or trade of the employer, and where the schedule for commencement and completion of work is fixed;
Ø Work of a temporary nature which has a fixed schedule for its commencement and completion;
Ø Seasonal work where employment is only for a particular season.
Also, the work can be completed within two years according to Section 118, last paragraph of the Labor Protection Act B.E. 2541, so as to align with the maximum length for fixed-term employment contracts.
Severance payment is also an important issue. Regardless whether the employment contract is a fixed-term contract or not, an employee who has been working with the employer for 120 days or more, is entitled to severance payment according to Section 118 of the Labor Protection Act B.E. 2541. This applies to all cases except if an employee has committed acts which allow the employer to refuse to pay severance payment according to Section 119 of the Labor Protection Act B.E. 2541.
資遣費也是一個重要問題。依據《佛曆2541年勞工保護法》第 118條，無論勞動契約是否為定期契約，員工替雇主工作滿120天都有權獲得資遣費。這適用於所有情況，除非員工有依依據《佛曆2541年勞工保護法》第 119條允許雇主拒絕支付資遣費的行為。
Following are Supreme Court Precedents for Thai employers to evaluate the qualification for fix-term contracts:
Ø Supposedly fixed-term contract contains a clause allowing an employer to terminate the contract prior to the designated termination date if an employer has no work to assign to the employee. The Supreme Court stated such a contract was not a fixed-term employment contract (Supreme Court Precedent 888/1984).
Ø Supposedly fixed-term contract contains a clause allowing either party to terminate the employment contract prior to its termination date. The Supreme Court stated that such a contract was not a fixed-term employment contract (Supreme Court Precedent 5180/1999).
Ø Supposedly fixed-term contract was for a period of employment longer than two years (Supreme Court Precedent 2403-2430/2000).
Ø Employer’s business is in the construction field and the employee has been hired to work as a construction worker. Since the employee was hired in the normal business or trade of the employer, the Supreme Court determined that the employee could not be employed based on a fixed-term contract. (Supreme Court Precedent 114/1997).
Ø A three-month probation contract contains clauses stating that an employer is only obliged to hire an employee permanently if the worker passes probation and granting the employer the right to terminate or extend the probation period at will. The Supreme Court stated a contract was not a fixed-term employment contract (Supreme Court Precedent 8800/2004) (The Labor Protection Act was updated in 2008 to state that probationary employment should not be considered as a fixed period).
三個月試用期契約有條款規定，只有在員工通過試用期後，雇主才有義務永久聘僱員工，並賦予雇主隨意終止或延長試用期的權利。最高法院稱契約不是定期勞動契約 (最高法院判例 8800/2004) (《勞工保護法》於2008年更新，規定試用期不應被視為定期契約) 。
#泰國定期勞動契約 #thailaw #泰國法律 #泰國中文律師 #IBC法律金融會計事務所 #泰國律師 #泰國法律事務所 #泰國律師事務所 #泰國會計 #泰國審計 #泰國會計事務所 #泰國審計事務所 #法律顧問 #泰國會計師 #泰國華人律師事務所 #thaiaccountant #thailawyer #IBCFirm #ThaiLawFirm #ThaiAccountingFirm #thaiauditfirm