Teachers rights

I have had many friends ask me recently about a teacher's rights under Thai Labor Law. So I thought it might be an interesting and useful article for some of you.

Thai Labor Law is interestingly different in several ways, when compared with Labor Law in most English speaking countries.
First, Thai Labor Law has no rules or regulations concerning hiring processes. Is there "affirmative action"? (NO) Can an employer ask for a picture during the interview process? (YES) Can they discriminate? (NO) How does a person who feels discriminated against, in the hiring process, prove discrimination? (MAKE A COMPLAINT TO THE LOCAL LABR INSPECTOR OR SUE THEM)

Second, there are currently nine different sets of legal code in Thai Labor Law that deal ONLY with termination of employment. I know of no other nation that has this many ways of protecting an employee against wrongful termination.

So what does this mean for the teacher in Thailand? It means that schools can place ads like the ones we've all seen, saying things like "Only light skinned people need apply", and other such racist things, because they have no fear of an affirmative action law suit. It also means that a teacher, who knows their rights under the law, can demand to be treated fairly by any employer who wishes to terminate them and (besides a lot of negative naysayers to the contrary) CAN sue and win against a Thai employer. I am an English language consultant to The Labor Courts and there are, on average 25 to 30 lawsuits per year where Non-Thai nationals sue a school in Thailand for wrongful termination. The plaintiff "wins" (i.e. receives a judgment for payment from the defendant) in about 75 to 80 percent of these cases.

I have always been amazed by how little most foreigners and Thai people know about Thai Labor Law. Why wouldn't you want to know what your rights are under the law? If you are ignorant of your rights you can have them easily exploited and, often, unbeknown to yourself.

I have also often been shocked by how often a potential foreign teacher hire does NOT read the entire employment contract before signing it. If you don't read every word of every sentence then it is your fault if you end up being taken advantage of! We don't live in a perfect world.

I'll give you a bit of good, free advice. You don't need to consult an expensive labor lawyer, who speaks English, has an office on Sathorn Road and charges 2,000 Baht an hour. All you need to do is buy the following book. It will be the best 800 Baht you ever spend on legal issues.

"Labour Protection Act, B.E. 2541 (A.D. 1998) with Notifications, Ministerial Regulations and Royal Decrees"
It is published by: Natee International Law Office Limited, 16th Floor, Alma Link Building, 25 Soi Chidlom, Ploenchit Road. (02) 253 - 5157 and (02) 253 - 5369 , www.nateelaw.com  
It is on sale at all Asia Books outlets. If they don't have it, they can order it for you.
(By the way, for the cynics out there, I am NOT getting any money to plug this book. I just think it is a book which every foreigner working in Thailand should own!)

On each left hand page, the law is printed in Thai. On each right hand page it is translated extremely well into English.
If you read this book, you will know more than 99 percent of everybody in Thailand does about Thai Labor Law, including Thai people! It has cleared up many questions and uncertainties for me since I bought it seven years ago.
Did you know, for example, that?

 1) Any school that hires you has the legal right to demand that you work 48 hours per week, not 40? (Page 8, Section 23, Paragraph 1) If they put it in the contract and you sign it, you are bound to it. Even if they DON'T put it in the contract, they can ask you (in writing) to come in and work every Saturday, if they want to. That would be a "lawful and equitable, work related request", to quote the law. Even though it's not in the contract, it is each person's responsibility to know their own rights under the law. It is not the employer's responsibility to make sure their employees know the law and many employers I have dealt with hold their cards close to the vest. Now I don't know many teachers that would want to work in a school that tried to enforce this rule or many schools who even know about this rule, let alone want to try to get their teachers to come in every Saturday. But it's an interesting fact to know.

2) You are entitled to a 6 day "annual holiday" once you have been working, continuously, for the same employer for no less than one year? If less than one year, on a pro rata basis. (Page 10, Section 30, Paragraph 1) Your employer is supposed to set the fixed dates of said leave, right in the employment contract. However, they can insert a clause asking you to request said leave days, in order to keep the dates unfixed, if they want to. Teachers who work in schools where there tend to be a lot of last minute, unplanned changes to the academic calendar would probably be asked by their employer to request specific dates themselves, instead of the dates being fixed. You and your employer can negotiate whether said leave days, if unused, are accumulative and do or do not "roll over" into the subsequent contract year.

3) When your employer is calculating overtime pay for you, they must pay you one and a half times the basic hourly pay rate? (Page 16, Section 61, Paragraph 1) How do they calculate your basic hourly rate? If you're paid hourly, it's a no brainer. However, if you're paid a monthly salary your employer must calculate your daily rate at 30, whether there are really 28, 28, 30 or 31 days in the month for which they are calculating. (Page 18, Section 6, Paragraph 1) This includes days you do not work, like Saturday and Sunday. Once they have your daily rate calculated, they must count how many hours you work on a typical work day. This means the hours you are required to be on the work premises, not just the hours you teach. They cannot count lunch when they calculate. So, for example, a teacher with a base monthly salary of 45,000 Baht has a daily pay rate of 1,500 Baht. If they have to be at work, whether teaching or not, from 8 am until 4 pm, and we don't count lunch, they have 7 working hours a day. Their hourly pay rate would be 214 Baht. So an overtime hour would be 321 Baht.

 4) If you are part of management and are someone who "has the authority and duty to act on behalf of the employer in relation to the terms of employment, the grant of gratuities, a reduction in basic pay or termination of employment" that you have NO right to overtime pay. (Page 17, Section 65, Paragraph 2)

5) If your employer terminates you for any reason NOT in Section 119 (we'll get to that section a few lines down) they still have to pay you for the 6 days of annual leave, assuming you've been working for them for no less than one year.

6) An employer can suspend you, at only half of your basic daily pay rate prior to suspension, if they wish to investigate an alleged transgression on your part. However, this right must be clearly enumerated in written form in your employment contract and/or any Employee Rules and Regulations forms or handbooks your employer may have you sign. They can only do this for a maximum of seven working days. (Page 32, Section 116, Paragraph 2)

7) An employer can terminate a teacher's employment, and pay them NO severance pay if a teacher is guilty of...(Page 34, Section 119, Paragraphs 1 - 4)
a) Dishonest performance of his duties or the intentional commission of a criminal act against the employer
b) Intentionally causing loss to the employer
c) Performance of an act of negligence which results in severe loss to the employer
d) Violation of the employer's work rules or regulations or orders which are both lawful and equitable when the employer has already issued the employee with a prior written warning, except in a serious instance when the employer is not required to give a prior written warning.
e) Neglect of duties for three consecutive days, without reasonable cause, whether or not a work holiday intervenes.
Warnings are valid for one year from the date of the offense. So if an employer gives you JUST ONE written warning for being late to work, they can fire you the next time you are late to work, as long they give you the advance notice required in the contract. (Which we'll get to below.)

8) Your employer must pay you at your place of employment, unless you have signed a document stating that you forego this privilege. (Page 16, Section 55, Paragraph 1) In employment contracts with teachers who work for me, I have a clause that states "By signing this employment contract, you agree that employer does not have to pay your salary to you at your place of employment (for reasons of safety and security) and that you have no problem with them not doing so." Who wants to carry around hundreds of thousands of Baht, waiting to be held up? Not me! I transfer the salaries into their accounts. It's much safer and they can never claim that you did not pay them.

The following information is not from the book, but from my lawyer.

9) The required advance notice of termination that you and/or your employer are required to give each other is NOT 30 days. It is equal to the number of days in the salary pay cycle agreed upon between the two parties. Sometimes this is 30 days, sometimes not. For example, when I was a Head of Personnel at an international school, we had the 30 day advance notice clause, like almost every other organization. However, after having hired two teachers who turned out to be emotional nightmares after only a few weeks of employment, I asked my lawyer if there was anything I could do. He recommended that, during a new teacher's probationary period, we pay them every Friday. That would make their salary pay cycle once a week, or seven days. So, if a new teacher turned out to be too unstable, irresponsible, unprofessional, etc (and we saw this early on) we could give them just 7 days advance notice of termination of employment. In over seven year of hiring hundreds of people in different capacities I've only had to use this clause 4 times. But I have been glad I had this option, to get rid of nutjobs quickly. Who wants them around for another 27 days? This works both ways. If you don't like the school or a certain coworker, you can give only 7 days notice to quit and then be able to go work somewhere else sooner. However, it must state this in the contract. If this is not discussed in the contract, a judge will look at pay stubs to see the frequency of salary payment.

10) Some teachers operate under the (false) assumption that they can demand that their schools pay them, in cash, at the end of every work day. If you have no employment contract which states otherwise or if you are an hourly or daily employee, you can ask them to pay you, in cash, at the end of every work day. Whether or not they agree to do so is another issue entirely. However, if you are paid a monthly salary, you do not have this right. If you are paid a monthly salary but do not have an employment contract, the judge would look at evidence of you being paid to decide whether you are a monthly salaried employee or not. Even if you are an hourly or daily employee, and your employment contract states that you will be paid once a month, you do not have the right to ask to be paid daily.

11) Since the Thai constitution expressly prohibits Non-Thai citizens from being Thai government employees, we are classified as "Temporary Employees" or อาตราจ้าง in Thai. As such, we fall under the sway of general labor law, NOT the rules and regulations for a Thai government teacher. Why is this important? For example, a person who is under general labor law (i.e. a foreign teacher) is entitled to 30 days of sick leave per year, unless they work in certain other professions, of which teaching is NOT one. I can't remember how many Thai public schools I have consulted for in which the Head of The Foreign Language Department has tried to tell their foreign teachers that they can ONLY take 12 sick days per term, or 24 per year, which is the guideline that Thai government teachers must go by. When I explain to them why this is untrue, many of them answer something like "They are working in a government school, therefore they must follow the same rules and regulations as a government teacher. This is simply incorrect. However, if you take anything coming close to 24 sick days (let alone MORE than 24) in one year, you probably won't have a job the following year. The system tends towards a bit of self regulation.

12) A good "rule of thumb" as to how many minutes late a teacher needs to be before a school should consider them to be late is 10 minutes. In my lawyers experience, 27 years as a labor lawyer, anything less than 10 minutes is usually not considered long enough by a judge. So if any employers reading this have any teachers who are chronically late, either change the contracts for next year or do up an addendum for the current contracts. If you need them to be present and ready to work at 8 am, have their work day start officially at 7:45 or 7:50. That way, assuming they're late again (which is probably a safe assumption) you'll be able to give then written warnings galore. I think it's pretty sad that there seem to be many foreign teachers in Thailand who like to come in late. I had one Australian teacher, at an international school I worked at, who would come in 10 or 15 minutes late almost every day. She would sneak through an empty field behind the school, climb over the fence and sneak through the back of the physical plant, smelling like a wildebeest in heat by the time she got to the classroom. I felt like a junior high school Principal, back home, on a hunt for skipping 7th graders who were "going out back to smoke a joint". Ridiculous!

Well, that's all I can come up with for this month. Hope that some of you can use this info. Good luck to you all and happy teaching!