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Legal Insight / Labour Management /Principals and Guidelines of Overtime Work (Translated in English)

 This is the translation of “หลักเกณฑ์และวิธีการการทำงานล่วงเวลา” posted on 2020.05.02                                 

 

Introduction

Since the Industrial Revolution, human have hugely developed and expanded their commerce like never before. The bigger trading system, the more demands of labour to achieve productions. Some employers, as a person who has power over his employee, assign employers to work so hard that heavy load of work worsen the employee’s health and quality of working life. Plus, some employers don’t even pay extra wage for the overtime working. The Government, therefore, has issued protective measures to protect the employees from unfair employment. For example, limitation of working hours; or, the employer is required to pay extra wage for overtime work. Significant  details as follows:

  1. An employer has the right to require his employees to work overtime?

Thailand has announced several laws to set appropriate working criteria, legal rights, and maintain good relationships between employers and employees. Among those laws, Labour Protection ActB.E. 2541 (1998) is the most cited one. In this article, too, we would like to show you significant labour law with the reference made to Labour Protection Act, B.E. 2541 (1998). Starting with the definition of “Overtime work”, Section 5 of this Act defines “Overtime Work” as “Overtime work” means “work performed in excess of or beyond the normal working period in a day as agreed to by the employer and the employee…”  So, the employee is required to work for specific working hours, after that, his work operation will be called overtime working or OT working.

To understand clearly an employee’s working hour, Section 23, paragraph one, states “the daily working period shall not exceed eight hours and the total working period in each week shall not exceed forty eight hours, except where the work may be harmful to the health and safety of the employee as prescribed in the Ministerial Regulations, in which case the daily normal working period shall not exceed seven hours and the total working period in one week shall not exceed forty two hours such as dangerous welding task, chemical production, or hazardous material transportation.”

That is, an employer can appoint an employee to work in working hours of not more than eight hours per day; or, only seven hour per day in the case of work that causes health and safety risks. So, if the employer requires his employee to work for more than the mention period, the work from the ninth hour onwards will be counted as overtime working or OT working, for the work may be harmful to the health and safety of the employee, section 31 stated that the employer could not require the employee to perform work overtime

Importantly, the employer must get consent from the employee before assigning them to work overtime.  As stated in Section 24 that “an employer is prohibited from requiring an employee to work overtime on a normal working day, except with prior consent of the employee from time to time.” This means, regularly, the employer has no right to require or force the employee to work overtime but has to ask for the employee’s prior consent every single time the employer needs them to work overtime. The Law does not specify the means for asking for the employer’s prior consent. So that the employer is able to make a verbal agreement, a written notice, or conversation. Still, the employer is prohibited to make an agreement forcing the employee to always agree to work overtime. Such the agreement that is against the law is invalid.

On the other hand, if the employee voluntary to work overtime without a request from the employer—as the employee may want to gain extra money from working more than 8 hours a day—the employee cannot claim overtime pay from the employer because the law clearly specifies that overtime working must happen after the agreement between the employer and the employee. Without the employer’s request, the employee has no right to claim anything for working overtime.

It is noted that overtime work is prohibited for the work that may be harmful to the employee’s health and safety according to Section 31.

However , as stated in paragraph two of Section 24, when the work requires uninterrupted performance, unless damage will result, or the work is urgent, the employer may require an employee to work overtime as necessary without the employee’s consent.

 

  1. An employer is able to use flat rate payment for overtime working?

First, we have to take a closer look at types and rate of overtime work as follows:

  1. Overtime work on a working day means an employer and an employee agree to continue working on that day after the daily working hour ends. According to Section 61, the employer is required to make overtime payment at the rate of not less than one and a half times of the rate of the hourly wage earned in a normal working day. For example, if the employee receives 100 THB per hour on a working day, he will get 150 THB per hour for overtime work.
  2. Overtime work on a holiday means the employer and the employee agree to work on a holiday, whether it is a weekend, a public holiday, or a vacation. In this case, the employer is required to pay holiday overtime payment to the employee at the rate not less than three times of the hourly wage rate earned per hour on a normal working day in accordance with Section 63. For example, if the employee receives 100 THB per hour on a working day, he will get 300 THB per hour for overtime work on a holiday.

There comes a significant issue that whether or not the employer uses flat rate payment for overtime working. For example, the employer, who gets 100 THB per hour on a working day, agrees to work overtime for 5 hours each month. As the description above that the employer has to pay at the rate of not less than one and a half times of the hourly wage in normal working day, this employee will receive 150 THB per hour or 750 THB in total for 5 hours of the overtime working; but, the employer offers flat rate payment of only 600 THB in total. Is this flat rate payment capable in this case?

Section 61 and 63 specify the rates of overtime payment; not less than 1.5 times of the hourly wage rate for overtime work on a working day, or not less than 3 times on a holiday. There is no provision that allows the employer to use flat rate payment. If the employer desires to use flat rate payment, the total overtime payment the employee will receive must be equal to or more than the hourly wage rate for the overtime working specified by the law. Or else, the flat rate pay is prohibited.

 

  1. An employer can schedule flexible working hours?

Normally, the employer has to inform his employee the starting and finishing hour of each working day. For example, the employee must start working at 9 a.m. and finish at 6 p.m. the employer is able to schedule the starting and finishing hours as long as the total of daily working hours is not exceeding 8 hours, not including break time for 1 hour at the minimum. The issue is whether or not the employer schedules non-fixed work hours? In other words, is the employer able to schedule flexible working hours, under an agreement with the employee? For example, the employer allows the employee to start working anytime within 8 -11 a.m. and finish by 5 – 8 p.m. in which the employee is required to work for 8 hours daily.

Section 23 states “An employer shall inform an employee of his/her normal working period by specifying the starting and finishing time for each working day … provided that it shall not exceed eight hours in one day… and the total working period in each week shall not exceed forty-eight hours.” Therefore, the example above shows that the employer already schedules working hours in accordance with the law as long as the working hours is not more than forty-eight hours per week. If the employer requires the employee to continue working after the eighth hour of working, he has to get prior consent from the employee and pays overtime payment at the rate of 1.5 times of the hourly wage in a normal working day.

 

  1. How to count the employee’s working hours in the case of working from home?

Due to COVID-19 pandemic, the Government has issued measures to encourage social distancing to lower the chance of transmission as much as possible. Public agency has managed staggered work shifts for officials who work on site, and promoted online contact, for general people, instead of physical present at the office. For private sector, the Government never orders private organizations to mandate their staffs adopt a work-from-home policy. Some organizations still require employees to attend the workplaces as usual while the others allow work from home basis.

Working from home is also a kind of working remotely. Certain positions, by nature of the job role, requires going off-site and non-fixed work hours such as a tour guide and a salesperson or other positions whose work is in accordance with Section 65 (7) “ Work with nature or condition of having to perform away from workplace and definite working hours of which are unable to fix.” For this case, the employee has to work for 8 hours on daily workday and for not exceeding 48 hours in a week. If they are requested to perform work overtime, they will receive a wage in an amount equal to the hourly rate of wage for working day on the basis of the actual hours worked.

However, Section 65 (7) cannot apply to the case that the employers allow work from home policy for other positions, to avoid COVID-19 transmission, because  the nature of the work role can be done in the workplace such as a discussion, a document management , or even a meeting in the office. Normally,the employers can count the employee’s work hours from attending the workplace, how can they do that after they have adopted work from home basis?

From the legal aspect, we recommend the employer to emphasize their employees to work for a period as agreed to by the employers and the employees. For example, work starts at 9 a.m. and finishes at 6 p.m., or 8 hours in total; and, the employees must perform their duties with honesty, which is a key quality of employment. Plus, the employers may find technologies to support managing the work from home system as well as counting the working hours of each employee such as Slack for group chat which shows availability status of everyone throughout work performance. The employer can see if the employers are working to some extent. Still, this program doesn’t show what activity the employers are doing, whether they are actually working or not.

Another well-known program is Zoom, a videoconference platform that allows everyone to see each other at all time, like when staying together in the workplace. Plus, Zoom gives better verbal communication than text message and email. However, certain features are available only for Pro version so the employer should do some research on that before making a decision. There are several choices of supportive programs for work from home during this COVID-19 pandemic such as Line, Google, Hangouts, Meets, etc. to help boost productivity for work from home basis.

Also, the employer should be aware that despite the employees working from home, requiring them to work after normal work hours is considered overtime working as well. Again, the employers need the prior consent from the employers and make the overtime payment. The employee can claim such circumstance that the employer requires the overtime work from text message or phone call and the work submitted via online platforms such as email and chat group.

 

To summarize, the employer cannot request the employee to work overtime without prior consent. Overtime working must happen by an agreement between them from time to time.  The agreement of overtime working that is always valid is against the Labour Protection Act. Except for the work requiring uninterrupted performance, unless damage will result, or the work is urgent, that the employer is entitled to require the employee to work overtime without the consent. The employer is required to make overtime payment at the same rate fixed by the law, unless the employer is liable to unlawful employment.

 

We do hope this article will be a useful resource for guiding the rule of working overtime for both employers and employees, and could help smoothen all kinds of work policy.

 

                                                                                                                                                       Nawapon  Yaempiromsri

Viranpat   Kitsuwanrat

Translated by Kanyakorn Sakulpram