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Legal Insight / Labor Management / Holiday (Translated in English)

This is the translation of Legal Insight / Labor Management วันหยุด (Holiday) posted on 2020.04.24

 

As a result of the Coronavirus 2019 pandemic, the Cabinet has announced the Resolution to postpone Songkran Holiday on 13 – 15 April 2020 to be no longer public and private holidays, and the substitution holidays will be announced later. Certain organizations respond to the Cabinet Resolution by working in Songkran Holidays as normal working days, but some organizations decided not to do so. In this article, we will take a look at “holiday” in accordance with the Labour Protection Act, B.E. 2541, hereinafter referred to as “the Labour Protection Act”.

Section 5 of the Labour Protection Act describes “Holiday” as “a day fixed for an employee to take a Weekly holiday, Traditional holiday or Annual holiday.” Or, a free day set by an employer for an employee to be used for taking a rest or doing personal business. However, for a work nature requires operation in holidays such as shopping malls, restaurants, or other works listed in Ministerial Regulations, the employer may set a holiday to be a normal working day. There are 3 types of holidays: Weekly holiday, Traditional holiday, and Annual holiday.

 

  1. Weekly Holiday

Section 28 of the Labour Protection Act prescribes that “An employer shall allow an employee to have at least one day off per week as a weekly holiday and the interval between each weekly holiday shall be no longer than six days. An employer and employee may agree in advance to fix which day as the weekly holiday.” That is to say, when an employer has worked for 6 days, or fewer, in row, an employer is required to grant the employee 1 holiday at the minimum. The holiday is unnecessary to be a Saturday or Sunday. But, Most companies set Saturday and Sunday as Weekly holidays like those of Government Sectors.

 

  1. Traditional Holiday

According to Section 29 of the Labour Protection Act, “An employer shall inform an employee in advance of at least thirteen annual traditional holidays as prescribed by the Minister, which shall include National Labour Day.

An employer shall determine the traditional holidays in accordance with annual official, religious or local traditional holidays.

Where a traditional holiday falls on the employee’s weekly holiday, the employee shall be granted a holiday on the following working day in lieu of the traditional holiday.

Where an employer is unable to allow an employee to take his/her traditional holiday because of the nature or type of work performed by the employee is that prescribed in Ministerial Regulations, the employer shall agree with the employee that another day be taken as a holiday in lieu of the traditional holiday, or the employer may pay holiday pay instead.

In other words, a traditional holiday is a day off an employer is required to notify an employee in advance by means of posting a notice and so on. The employer mostly posts a notice of those traditional holidays that include public holidays (e.g. New Year’s Day, New Year’s Eve, Father day, etc.), traditional holidays (e.g. Songkran holidays, etc.), and regional holidays (e.g. Makha Busha, Visakha Busha, Asahna Bucha, etc.) the employer is required to grant at least 13 days of traditional holidays, which comprise 12 annual traditional holidays plus a national labour day.

In 2020, the total annual official holidays set by the recent Announcement of the Prime Minister’s Office is 19 days. In one year, therefore, the employer may provide holidays for more than 13 days, but that is less than 13 days is prohibited.

 

  1. Annual holiday

Section 30 prescribes that “an employee who has worked continuously for one full year shall be entitled to an annual holiday of not less than six working days which shall be fixed in advance by the employer or set out in an agreement made between the employer and the employee.

In subsequent years, the employer may fix the annual holiday for more than six working days for an employee.

An employer and employee may agree in advance to accumulate and that the unused vacation of that year be postponed and be taken together with that of the following years.

For an employee who has worked for less than one year, the employer may fix and grant the employee an annual vacation on a pro-rata basis.

To exemplify, an annual holiday is a day off specified in an employment contract or work rules. The annual holiday may be set merely by an employer’s side, or by mutual agreement between an employer and an employee. Most organizations allow employees to set the leaves by themselves, but a prior notice is required before taking any day off. This policy helps the employer not to assign the employee an important task on that day, or to find a substitute staff in time. The employee who has worked for one year is entitled to get at least 6 annual leaves per year. E.g. an employee who starts working on 1 June 2020 will complete the first year on 31 May 2021. So, from 1 June 2021 onwards, where it is the first day of the second year, he/she will be able to use the annual leaves of 2020.

As aforementioned section 30 does not clearly specify method of annual leave entitlement for an employee who has worked for more than one year, there comes an issue for the employer that how are they supposed to fix the annual leave, and whether or not the leave be accumulated with that of the second year. We will see the example from the judgment of the Supreme Court no. 3629/2529 and the ruling of the Legal Affair Division under the Ministry of Labour that “after working for one full year, an employee is entitled for annual leaves for at least 6 days of each year. After completing the first year, the annual leave the employee takes is that of the previous year. Then, the employee does not have to complete another year before taking annual leave the following year.” To illustrate, the employee will be able to take annual leave after he/she completes the first year of working. For the second year, the employer provides the employee 12 days of annual leave, that of the first year plus the second year.

Then, the employer may be concerned that the employee may take a set number of days in a row off. Still, the employer has the power to set up a vacation policy that prevents taking a day off for a whole week, unless it’s necessary, or, requests not to take a day off during peak season.

Anyway, in the case that the annual leave is not fixed in advance, the employer is not required to pay for an annual leave when the employee, who has not worked for one full year, is terminated. This is because the employee hasn’t gotten the annual leave entitlement yet while the employer does not provide him the annual leave as well.

Section 30, paragraph 4, gives only the employer the right to fix and grant the employee who has yet to work for a full one year the annual leave base on a pro-rata basis. This conforms with the judgement of the Supreme Court no. 7480/2560 that “Section 30, paragraph 1, of the Labour Protection Act, B.E. 2541, is provision of annual leave entitlement and working period for such entitlement, an employee who has worked for one full year will be entitled to take an annual leave. For an employee who has yet worked for one full year, an employer may grant the annual leave base on a pro-rata basis in accordance with Section 30, paragraph 4. In this case, despite the fact that the plaintiff (an employee) is terminated by the 2nd defendant (an employer) without cause of misconduct, the plaintiff has not completed his first year of working, plus both parties never agree or fix the pro-rata based annual leave. Therefore, the plaintiff does not have the annual leave entitlement prescribed in Section 30 for the 2nd defendant (the employer) to pay for, in proportion to the annual leave the employee is entitled according to Section 30, in the year of termination as prescribed in Section 67.”

The annual leave policy is varied with flexibility. Certain organizations allow employees to take an annual leave since the first year of work. Or, the amount of unused annual leaves can be accumulated with that of the following year. It is an employer’s duty to decide the annual leave policy and include it in work rules, or to agree with an employee on the date of  signing an employment contract.

 

Does an employee get paid for holiday?

An employer pays wages in return for employee’s work. However, the law prescribes that an employer also has to pay wages equal to a working day’s wage for a weekly holiday, a traditional holiday, and annual holiday, in compliance with Section 56 of the Labour Protection Act, despite the employee not performing work on those holidays. This provision facilitates the employer to calculate hourly wage for overtime pay by dividing monthly wage with 30 (working days), including all kinds of holidays in Section 69. Then, the result is multiplied with hours of overtime working.

 

What is the penalty If an employer does not fix a holiday for an employee?

An employer should be aware that if he does not fix the annual leaves: weekly holiday, traditional holiday, and annual holiday, for an employee, he is subject to a fine of not exceeding 20,000 baht according to Section 146 of the Labour Protection Act. In addition, by Section 144, in the case that the employer requires the employee holiday work, whose work is not the types that prescribed in Ministerial Regulation, without the employee’s prior consent, the employer may be punished with a term of imprisonment of not exceeding 6 months or a fine of not exceeding 100,000 baht, or both. If the employee agrees to work on a holiday, the employer has to pay wage and overtime pay (if any) in compliance with Section 64 of the Labour Protection Act.

 

Does an employer have to pay for the employee’s unused holidays?

If the employee does not take any leave, the employer may fix annual leave in accordance with Section 30. On the other hand, if the employer does not fix the annual leave in advance and the employee neglects to take the leave, it deems that the employer gets the employee to work on a holiday in accordance with Section 64, which means the employer has to pay wage for work on a holiday in the rate specified in Section 62. That is, an additional amount of not less than one time of the hourly wage rate earned on a normal working day (for general employee), or not less than one time of the wage calculated on piece rate basis on a normal working day (for an employee of Piece rate).

 

Does an employer have a power to require an employee to perform work on a holiday?

Generally, an employer is prohibited from requiring an employee to perform work on holiday without obtaining the employee’s consent as prescribed in Section 25. However, the employer is allowed to get the employee work on a holiday without the consent for the following works,

–          the character or nature of work must be performed continuously, and the stoppage may cause damage to the work, or it is emergency work e.g. production lines.

–          a hotel business, an entertainment establishment, a transport work, a food shop, a beverage shop, a club, an association, a medical establishment, or other business prescribed by Ministerial Regulation.

In the case of the mentioned works, if the employee does not perform the work on a holiday as required by the employer, he may be punished by the employer. On the other hand, if the employee performs work on a holiday, the employer has to pay a holiday pay according to Section 64 and 62 in the rate previously mentioned above.

 

The difference between a holiday and a leave

A holiday is a free day fixed by an employer, or a mutual agreement with an employee. The number of holidays must not be less than that fixed by the law including weekly, traditional and public holidays.

 

A leave is the entitlement of an employee which he can decide by himself whether or not to take such as sick leave, leave for sterilization, business leave, maternity leave, leave for training, and leave for military service.

 

Definitions and entitlement of each type of leaves will be explained in the later column. Please stay tuned for our new article.

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1 the Cabinet’s approval on 17 March 2020

2 Announcement of the Prime Minister’s Office Re: Official Holiday for 2020, dated 24 May 2019

 

 Sunida Mahapiroon

Surinthorn Pamornchokprasop

Translated by Kanyakorn Sakulpram