WORKING ABROAD OF THAI WORKERS:
LEGAL PERSPECTIVES OF THE COUNTRY
PROFESSOR DR.PHUNTHIP KANCHANACHITTRA SAISOONTHORN,
FACULTY OF LAW, THAMMASAT UNIVERSITY**
I n t r o d u c t i o n
1. Objective of this research
The objective of this research is to provide solutions for a controversial issue in Thai society,
that is, “policy option” of Thailand with respect to the matter of working abroad of Thai workers in
time of economic recession of Thailand. In this respect, it can be viewed that laws can aggravate as
well as solve the problems simultaneously. However, legal implications relating to Thai workers
working abroad also vary. Viewed on the basis of origin of the problems, such legal problems can be
classified into two aspects namely legal problems arising in the country of departure where Thai
workers are leaving for work abroad and those arising in the country of destination wher e such Thai
w o r k e r s a r e f o u n d .
This research, however, focuses only on the study of legal problems arising in the country of
departure as well as of solutions for such problems, In particular, Thai laws affecting the wo rking of
Thai workers abroad are the subject matter of this resear ch.
2 . R e s e a r c h o u t l i n e
In order to provide an overview of Thai laws relating to the working of Thai workers abroad,
this research is divided into 7 chapters as follows:
Chapter 1 Recogn ition of r igh ts of Th ai natio nals to wor k abr oad
C h a p t e r 2 P r o c e s s o f s e n d in g T h a i w o r k e r s t o w o r k a b r o a d
Chapter 3 Contro l of labor r ecru itm ent bus in ess for working abroad
Chapter 4 State organs involved in the working abroad of Thai workers
Chapter 5 Duties of the companies licensed to engage in labor recruitment business
Ch ap ter 6 D u ties o f th e w o r k s eek er s tr av elin g to w o r k ab ro ad
Ch ap ter 7 A s s is t an c e to T h a i w o r k er s in th e f o r e ig n co u n tr ies
* Translated by Professor Dr. Jumphot Saisoonthorn, Faculty of Law. Thammasat University.
** Thai paper is presented at the first Workshop on Thai migrant workers in East and Southeast Asia held on August,
6 – 7 , 1 99 8 a t A s ian R e sea rc h C e nte r f or Mi gra ti on , C hu la lon gk or n U ni ver s it y.
C ha pt er 1 R eco g nit io n o f rig hts o f Tha i na t io nals t o w o rk a bro a d
1. Existence of legal provisions recognizing the rights of Thai nationals to work abroad
Although the present Constitution of Thailand (B.E.2540) does not clearly provide for the
rights of Thai nationals to leave the country, there is no law which specifically prohibits Thai
nationals to leave the country to work in a foreign country. Moreover, in normal circumstances, the
promulgation of laws prohibiting Thai nationals to leave Thailand is not allowed since Thailand has
ratified the International Covenant on Political and Civil Rights 1966. Article 12 (2) of said
International Covenant provides that “Everyone shall be free to leave any country, including his own.”
An exception of this Article is found in Article 12 (3) of the same International Covenant which
provides that “The above – mentioned right shall not be subject to any restrictions except those which
are provided by law, are necessary to protect national security, public order (order public), public
health or morals of the rights and freedoms of others, and are consistent with the other rights
r e c o g n i z e d i n t h e p r e s e n t C o v e n a n t . ”
As a result, Thailand is bound by such International Covenant not to promulgate laws or
undertake any act which amounts to the prohibition of Thai nationals to leave for work in a foreign
country unless such prohibition is allowed by the exceptions provided in Article 12 (3) of such
International Covenant. Such prohibition may be undertaken through legislations aiming at the
maintenance of (1) national security (2) public order (3) public health (4) good morals or (5)
protection of other persons’ rights and freedoms. The question is whether Thailand has promulgated
and law ensuing such prohibition which may result in the prohibition of Thai worker to work in a
f o r e i g n c o u n t r y .
2. Thai laws ensuing restrictions or elimination of the rights of Thai workers to work abroad
Under the present laws of Thailand, prohibition or requirements for working abroad of Thai
workers may occur in the following circumstances.
2.1 R e s t r i c t i o n o f r i g h t s u n d e r i m m i g r a t i o n l a w
Under Thai immigration law, a person leaving the Kingdom shall do so through
immigration channels, ports, stations or localities and at the time as prescribed by the Minister of the
Minister of the Ministry of Interior in the state gazette, Therefore, the right of Thai worker to leave
the Kingdom is subject to such conditions and time.
The problem which may arise of has arisen is that when the Minister of the Ministry of
Interior has closed any channel to any country, entry into such country is therefore not possible. For
example, closure of immigration checkpoint at the border of Thailand and Myanmar will prohibit the
entry of Thai nationals to work in Myanmar and vise versa. However, such closure to prohibit
migration across the border may not be seen very often a present since Thailand does not have any
serious conflict with any country. Closure of International contact therefore occurs only in exceptional
c i r c u m s t a n c e s .
2.2 Restriction of rights under the laws on labor recruitment and protection of labor
s e e k e r s
Thai laws require that Thai workers wishing to work abroad must go through labor
immigration checkpoints and must also submit the particulars thereof to the authority pursuant to the
form prescribed by the Director – General of the Labor Recruitment Department. If it is found that
such persons do not have any evidence relating to the work of training in a foreign country as
required by law, the authority has the power to suspend the departure of such persons from the
Kingdom as dictated by the circumstances. It is therefore clear that the rights of Thai workers to
work in a foreign country are suspended until and unless the requirements under the laws are met.
2.3 Restriction under the law on government administration in time of emergency
The Prime Minister and the Minister of the Ministry of Interior have the power to
prohibit any person to leave the Kingdom if there is a reasonable ground to believe that such
departure will affect national security. Any person violating such prohibition shall be subject to an
imprisonment not exceeding ten years or a fine not exceeding ten thousand baht or both.
3. Thai law facilitating Thai workers to work abroa d
In principle, Thai laws do not hamper a departure of Thai nationals for working in a foreign
country. The question is whether there is any Thai law, which facilitates Thai workers to work
abroad. If so, such facilitation is achieved in the form of “assistance” to such persons when they want
to go to work abroad or of “promotion” for such persons to work in a foreign country or of
“protection” of such persons when they have gone for work in a foreign country.
In this respect, the law on labor recruitment was first promulgated in the reign of King
Rama VII namely the Recruitment Office Act B.E. 2475 which was promulgated on 29 August
B.E.2475. Before that time Thailand did not have any law on the matter whatsoever. Labor
recruitment for working both within the Kingdom and in f foreign country is a business in which a
person is free to engage. However, the reason for the promulgation of such law is to protect the
interests of the workers not to be adversely affected by a newly emerging business, that is, labor
recruitment business. Although, such Act a silent on the recruitment of Thai workers for working in a
foreign country, it must be construed in such a way as to apply to the recruitment for working both
in the Kingdom and in a foreign country. The Act provides that labor recruitment business requires a
“permission” from the Minister of the Ministry of Interior. However, this Act was repealed and
replaced by the Labor Recruitment and Protection Act B.E. 2511 which came into force on 29 June
B . E . 2 5 1 1 .
The Labor Recruitment and Protection Act B.E. 2511 is not only aimed at formulating the
rules for all recruitment offices but also includes the control of recruitment methods and protection of
workers. Again, this Act does not have specific provisions for the recruitment of workers to work in a
foreign country. Labor recruitment business, nonetheless, remains one of the businesses for which
permission is required from the Ministry of interior before operation can be undertaken.
In order to solve the issue of ineffectiveness of said Act with respect to labor recruitment for
working in a foreign country, the Labor Recruitment and Protection Act B.E. 2528 was therefore
enacted to repeal the Labor Recruitment and Protection Act B.E. 2511. As a result, the principal law
applicable to the working abroad of Thai workers is the Labor Recruitment and Protection B.E. 2528
as amended by the Labor Recruitment and Protection (No.2) B.E. 2537. The next issue is therefore to
w h at ex ten t th is law f a c ilitat es th e w o r k in g o f T h a i w o r k er s ab r o ad .
4. Classification of workers working abroad
As occurring in other countries, employment process in Thailand may be classified into two
majors types namely conclusion of employment agreement between employers and employees without
the assistance of recruitment offices and conclusion of employment agreement between employers and
employees w ith the assistance of recruitment offices.
4.1 Working abroad of Thai workers without the assistance of recruitment offices
State only interferes with such relations by formulating the rules for working abroad of
Thai workers without the assistance of recruitment offices in 2 forms of employment namely
employment between employers and Thai employees in a foreign country and employment between
e m p l o y e r s a n d e m p l o y e e s i n T h a i l a n d .
State, however, will not interfere with an employment effected in a foreign country
between foreign employers and Thai employees having domicile in such foreign country because there
is no reason for the State of which such workers have a nationality to protect such workers since
they are not sent from Thailand. Decisions of such employees are made in a foreign country and
thereby subject to the laws of the country in which employment take place. Only when Thailand
wishes to protect its nationals is interference by Thailand required which at present is not covered by
the Labor Recruitment and Protection Act B.E. 2528. However, Thailand may extend such protection
to its nationals through diplomatic protection, which is recognized by international law and state
p r a c t i c e s .
4.1.1 Working abroad as a result of employment between employers in a foreign
c o u n t r y a n d e m p l o y e e s i n T h a i l a n d
Employment whether for a work in a foreign country or in Thailand may be directly
effected between employers in a foreign country and employees in Thailand without the assistance of
recruitment offices. Thai law does not always require such assistance of the recruitment offices. Thai
law, however, prohibits only the “application process” namely employers or their agents in a foreign
country are prohibited to solicit employment of employees in Thailand to work in such foreign country
independently of the assistance of recruitment offices. The law requires such employers or their agents
to effect such employment through private recruitment offices or the Recruitment Department.
However, even when a worker seeks to work in a foreign country by himself without the assistance
of any recruitment office, he is required by law to notify the D irector – General of the Recruitment
Department or a person designated by the Director – General thereof not less than fifteen days prior to
his departure. It is therefore concluded that although the law does not require permission for such
working abroad, the law, however, requires Thai nationals to notify state authorities of such working
in a foreign country prior to their departure from the Kingdom. Violation of such requirements results
in a commission of an offense inflicted by criminal penalty. However, such penalty is limited to a
fine only. It is doubtful as to what extent such law has been actually enforced.
4.1.2 Working abroad as a result of employment between employers and
e m p l o y e e s i n T h a i l a n d
Working abroad of Thai workers may be effected by an employment between
employers and employees in Thailand. Employers in Thailand may send employees to work or receive
training abroad. However, Thai law does not allow free expatriation of Thai workers abroad. The law
requires that employers in Thailand may send employees to work abroad only when permission
therefore is obtained from the Director – General of Recruitment Department.
4.2 Working abroad of Thai workers with the assistance of recruitment office
Working abroad of Thai workers may also be effected through recruitment offices. Thai
law on labor recruitment and protection has strict provisions for the control of labor recruitment
business since this type of business may lead to a “trade of human labor” which seriously violates
human rights. Therefore, study of recognition of Thai law on the labor recruitment for the working
a b r o a d s h a l l b e c o n d u c t e d .
C ha pt er 2 P ro cess o f sending Tha i w o rkers t o w o rk a bro a d
The process of sending Thai workers to work abroad may be conducted by state organ s or
p r i v a t e s e c t o r .
1. Process of sending Thai workers to work abroad conducted by state organs
The current Thai law requires the establishment of “Recruitment Offices” in the Recruitment
Department, Ministry of Labor and Social Welfare, which has the duties to provide jobs for the public
free of charge. Such Office may have branches as the Director – General of Recruitment Department
s e e s f i t .
2. Process of sending Thai workers to work abroad conducted by private sector
Thai laws since B.E. 2475 have recognized that private sector may engage in a labor
recruitment business subject however to strict controls by state organs. At present, Thai laws require
that certain types of business relating to expatriation of Thai workers to work abroad be licensed for
their operations namely labor recruitment business and labor skill test business.
2.1 Process of labor recruitment for the sending of Thai workers to work abroad
c o n d u c t e d b y p r i v a t e s e c t o r
Under Thai laws on labor recruitment and protection, private sector engaging in a labor
recruitment is strictly controlled and even subject to more control in case of recruitment for working
in a foreign country. The operators of such business must strictly meet the requirements of laws
namely (1) being a juristic person in a form of a company (2) having the registered cap ital which is
fully paid up as required by law (3) the majority of shareholders in the company having Thai
nationality (4) not being a person permitted to engage in a recruitment business and (5) providing a
s e c u r i t y a s r e q u i r e d b y l a w .
2.2 Process of labor skill tests for work in a foreign country conducted by private
s e c t o r
Labor skill test business has become the controlled business, that is, the operators are
required to apply for a license from the Director – General of Labor Skill Development Department
before conducting their business. Likewise, the operation of such labor skill tests must be in
accordance with the criteria and procedures prescribed by the Director – General. In addition, the
operators may not demand or accept any money or property or any other benefit except for such skill
test fee which is the rate prescribed by the Director – General of the Labor Skill Development with an
a p p r o v a l o f t h e R e cr u it m e n t D ev e lo p m e n t a n d Pr o t e c t io n Co m m it t e e .
Chapter 3 Control of labor recruitment business for working abroad
Labor recruitment business is the controlled business because the operators may not undertake
any act which may be detrimental to workers.
One method of such controls is to require the operators to obtain permission from the State.
State also has other measures to control such business from being abused fraudulently such as control
of the executives of recruitment companies, control of job application methods, control of fees to be
paid by workers to a recruitment company, control of recruitment offices or places and control of
d o c u m en t s r e l a t i n g t o s u c h r e cr u i t m en t .
Chapter 4 State organs involved in the working abroad of Thai workers
Before B.E. 2535, the principal state organ responsible for Thai workers in for eign countries
is the Labor Department, Ministry of Interior. Ever since the establishment of the Ministry of Labor
and Social Welfare, the principal organ responsible for this matter is the Recruitment Department,
Ministry of Labor and Social Welfare which is also supported by several other organs depending upon
the nature of functions such as Department of Labor Skill Development, Immigration Office of the
Po lice Dep artm ent, M in is try of Fo r eign Affairs and M in istry of Education.
There are also two other organs in the form of boards namely the Board on the Fund for
Assistance to Workers to Work Abroad and Labor Recruitment Development and Protection Board.
Chapter 5 Duties of the companies licensed to engage in labor recruitment business
The law requires that a licensed company has certain duties to be performed both before
workers leaving for work in a foreign country and during their work in such foreign country.
The duties to be performed by a licensed company before workers leaving for work in a
foreign country are (1) submission of recruitment and employment agreements for examination by the
Director – General of the Recruitment Department (2) medical check – up of workers and (3) training
o f w o r k e r s .
The duties of a licensed company after the workers have left for work in a foreign country
include submission of documents relating to workers to the Central Recruitment Register in Thailand,
notification of workers to the Labor Office or Embassy or Consulate in such foreign country,
undertakings in case where workers are not employed pursuant to recruitment agreement and
undertakings in case where workers receive lower wage than or position different from that stipulated
i n t h e r e c r u i t m e n t a g r e e m e n t .
C ha pt e r 6 D ut i es o f t h e w o r k s e ek e rs t ra v el i ng t o w o r k a b ro a d
Thai workers arriving in the country of employment have certain duties under Thai law as
follows (1) notification of their working in a foreign country to the Director – General of the Labor
Recruitment Department (2) departure from Thailand through checkpoint as required by law which is
duly permitted by the checkpoint authorities (3) notification of their arrival to the Thai Labor Office
or Embassy or Consulate in the foreign country.
Chapter 7 Assistance to Thai workers in the foreign countries
1. Concepts and methods of assistance to Thai workers in a foreign country
According to the principle of international law, a state has jurisdiction over its territory
and its nationals. Therefore, it and be said that Thailand has jurisdiction over Thai workers on account
of their nationality. However, exercise of such jurisdiction is restricted where Thai wor kers are in the
territory of a foreign state. A state of nationality of a person accepts the jurisdiction of such foreign
state over its territory in which such a person is found. As a result, Thai workers are subject to the
laws of a state in which their employment takes place. Therefore, the labor laws which protect Thai
workers in this case are those of the state in which their employment takes place and not Thai law.
If it is found that Thai workers are treated differently from the standards specified in Thai laws, it
cannot be said that such foreign state violates Thai law unless there is discrimination with respect to
fundamental rights relating to labor between Thai workers and nationals of such foreign states. Only
then can th e cas e of hum an r ight v io lation be raised.
In international practices, states usually enter into treaties with other states to facilitate
their nationals in obtaining better treatments than those enjoyed by other aliens or treatments equal to
those enjoyed by their nationals. However, Thailand has never attempted to reach any treaty with any
foreign country to protect Thai nationals working in such foreign country. There are some treaties,
however, which allow Thailand to protect its nationals in a foreign country but such treaties are not
aimed at protecting the person of Thai nationals but at the “investment of Thai nationals”. If such
treaties shall be of any advantage for Thai nationals, such Thai nationals must be the “investors” in a
foreign country. No treaty exists with respect to the protection of “unskilled Thai workers” working in
a foreign country. The possibility for Thailand to protect such workers is found in the customary
international law and general principle of law of international law that is, protection of Thai workers
by Thailand is based on the principles of diplomatic protection and of human rights.
2. Establishment of a fund for the assistance to workers seeking work in a foreign
c o u n t r y
In order to solve the problem of shortage of budget for the assistance to workers
seeking work in a foreign country, the “Fund for the Assistance to Workers Seeking Work in a
Foreign Country” is therefore established which derives its funds from (1) government subsidy (2)
money paid to the Fund by the licensed labor recruitment companies for working in a foreign country
as required by the law on labor recruitment and protection (3) interests on the Fund (4) money or
property donated by donors (5) securities which become the property of the Fund under the law on
labor recruitment and protection. The objectives of the Fund are to (1) assist the abandoned w orkers
in a foreign country to return to Thailand (2) help workers working in a foreign country and (3)
select and test the skills and trainings of workers leaving for work in a foreign country.
C o n c l u s i o n
Generally, there is no single Thai law, which eliminates or restricts the rights of Thai
nationals to work in a foreign country. Although there are laws applicable in special circumstances
which may affect the rights of Thai workers to work in a foreign country, such laws apply only
under certain conditions or for limited period of time and may be amended. Conversely, there are
several laws which facilitate Thai nationals to work in a foreign country as reflected by the strict
controls of labor recruitment business and the establishment of the Fund for the Assistance to Workers
S e e k i n g W o r k i n a F o r e i g n C o u n t r y .