Today, we answer some questions concerning employee benefits in Thailand.

Questions:

We are about to start our business operation so we would like to know your comments on our proposed compensation and benefits that we will give to our employees:

1. Probation period: For all positions, we will allot 3 months probation which either party should give 7 days notice for resignation or termination.
2. Working hours, 48 hours per week Mondays to Fridays 8AM to 5PM and Saturdays 8AM to 12 noon. For Operations Technicians and Supervisors, shifting schedules will be Mondays to Sundays 7 AM to 4 PM and 2 PM to 11 PM whereas shift allowances will be given and those who worked on Sundays or public holidays will be given a day off in lieu.
3. Annual bonus, variable depending on company’s performance.
4. Vacation or annual leave, depending on position and length of stay with the company
5. Sick leave, maximum 30 days per year
6. What about medical benefits?

Answer:

Below are our comments:

1. For probation period, what you suggested is OK. However, many companies usually use 119 days because once an employee completes 120 days, (or 4 calendar months) you will have to pay him the severance pay (1 month’s salary) and payment in lieu of advance notice (if you want the employee to stop coming to work right away). Please read this article: Severance pay – tax implication. However, please note that actually the employees can just quit right away and they will not have to pay you if they don’t tell you in advance even if they signed a contract saying that they will tell you 7 days in advance. Only if you can prove that their leaving the company without the advance notice caused you damage can you take the case to court.
2. For working hours, if you will make admin staff or managers work on Saturdays, you will not be an attractive employer. Even our companies, we don’t work on Saturdays unless we pay them OT rate per law. From our experience, when people know that a company works on Saturday, they don’t want to work there unless the pay is really high. The way to do it is that you can assign some of the employees to work on Saturday and have another day during the week off in addition to Sunday. However, it should be preset each month.

For shifts, also you want to assign the holidays for the shift employees each month in advance. We do not know if you have a lot of competitor employers because you may want to give these employees 2 days off per week too. The day that they are off, and they come to work during their normal work time, they will get 1 time their usual hourly rate (salary/30days/8hrs) extra for OT pay (because they already got 1 time in their normal monthly salary on their holidays). However, if you make them work before or after their usual hours, you will have to pay 1.5 times the usual rate on the normal work days and 3 times on their holidays.

3. For bonus, please do not tie bonus to company’s performance in sales or profit because it will be a non-tax deductible expense for the company. If you want to be an attractive employer, you want to tell your employees they will get a bonus according to their work performance.
4. For vacation, the law says at least 6 days per year, but you can choose to give them more. We see many of our multi-national clients use their global policy in giving bonus and vacation to the employees, which makes the employees feel very good because they feel they are part of the global company. Manufacturing companies in Thailand usually follow Thai labour law in terms of vacation they give to their employees. Some companies have provident fund so as to make the employees want to stay longer. If you want, we can refer you to some provident fund companies so you can see different structures that may be useful to your benefit scheme.
5. For sick leave, if an employee gets sick too much, the law does not say you can let him go without severance pay. (But if he disappears 3 days in a row without a doctor certificate saying that he is sick and has to take those days off, you can let him go immediately without severance pay). So you will have to use other means to discourage the employees from taking too many sick days. Some companies use a rewarding system like if they do not take days off as sick or to take care of their personal business at all in a month, they will get extra money, like Baht 500 or 1,000.
6. For medical benefits, the employees can get most hospital treatment for free because they contribute monthly into the social security system. However, it is up to your company’s policy if you are to provide allowance for medical expenses or health insurance.

Contact MSNA for your questions and more information on Thailand labour law.

Question:

We have previously sold our products in USD to a Thai customer. Now that we have incorporated our Thai company, is there any legal restriction on the local customers to continue paying us in USD because we need to pay USD overseas to import the products. Our Thai company hopes to avoid USD exchange rate risk. If it is in USD, how do we convert the exchange rate to calculate the withholding tax amount in Thai Baht?

Answer:

Please make sure you let the customers know that the price and payment will only be in USD even though they will pay you in THB (using the exchange rate on the day they pay the USD amount owed).

The invoice and tax invoice to issue will show the amount in USD in parenthesis only, the THB amount has to be shown on the tax invoice using the rate of the day before. When the customer pays, they will pay in THB (using the USD amount appeared on the tax invoice with the rate of the day). The difference in the Baht amounts on the day they pay and on the tax invoice will be gain/loss from exchange rate.

There is no withholding tax involved when it is sale of goods. Only when it is service fee will there be withholding tax.

Contact MSNA for your Thai accounting and tax questions.

To help improve the performance of small and medium enterprises (SMEs), which are defined as entities with no more than Baht 5 million of paid-up capital and sales revenues of no more than Baht 30 million per annum, the Thai government has approved the following tax measures:

– Corporate income tax exemption on income derived between 1 January 2012 and 31 December 2012 from the sale of machinery used in the manufacturing process or for manufacturing services, in order to purchase replacement machinery.

– The Revenue Department will provide special conditions and rates relating to amortization and depreciation of machinery used in the manufacturing process or for manufacturing services, for the period 1 January 2012 to 31 December 2012.

– A corporate tax exemption equal to 50% of the difference between wage expenses under the previous minimum wage rate and those under the current minimum wage rate (i.e. Baht 300) for the period from 1 April 2012 to 31 December 2012.

Further details on the implementation of these measures and associated regulations have yet to be announced. Contact MSNA for more updates.

Yesterday, the company owners decided to terminate one of our Thai company’s employees. He started working with us in April 2010. Consulting our company lawyers, we thought he is entitled to receive a compensation payment of 3 months. However, he talked to his own lawyer who told him that he is entitled to receive 5 months’ monthly salary. Being in-between chairs, I would highly appreciate if you could find time to drop me a mail with a clear written step-by-step procedure regarding contract termination and payment of compensation.

Answer:

When an employer company in Thailand wants to terminate an employee, they need to give an advance notice in writing before or on the date the salary payment is due for the termination to take effect on the next salary payment due date. In your case, you normally pay your employees on the 28^th of the month, so the salary is due on 28^th. You need to give him the advance notice within 28 June to take effect on the following salary payment due date, 28 July. If the employer terminates an employee and wants the termination to take effect right away, the employer has to pay the employee all the wages/salary that should have been owed if the termination would take effect on the following wage/salary payment due date. This is called payment in lieu of advance notice. In your employee’s case, you will have to pay him June and July salaries, plus 3 months’ severance payment. The total you have to pay him is 5 months. You can make him come to work until 31 July if you want but you need to give him the termination notice by 28 June which is today.

Need expert advice on Thai Labour Law? Contact MSNA for consultation.

Today, we got a question from one of our accounting clients regarding the import duties in Thailand.

Question:

I have a question that needs your expertise. We are selling a product to a client in Thailand that needs to be imported from the United States from our supplier there, who will issue an invoice to us. We would therefore like to know if there are any import taxes and what they amount to. If there are no such taxes, then the supplier can send directly the invoice to our Thailand Company but if there are, we are considering making the financial transactions via Head Office in Hong Kong, who would then be issuing the invoice to Thailand. Do you have any advice you could give us on this matter?

Answer:

Most likely there will be import duties and VAT to be paid at Customs. You need to consult with the company that provides customs clearance service (the Thai people like call “shipping company”). Some goods may be import duty exempted or even VAT exempted. However, in general, most products are subject to import duties and VAT. Whether you import directly or use Head Office to do it and invoice your Thai company, if the products are subject to import duties and VAT, you cannot avoid it.

The customer can import it themselves too, which bypasses your Thai company on the import duties and VAT because they will have to pay for them at the Customs. If your Thai company does the import, you will have to pass on the import duties and VAT to customer anyway, won’t you?.

Contact MSNA for your questions on Thai accounting and tax.

In addition to the recent implemented measures by the BOI of Thailand, it has been approved that incentives for machinery and technology improvement for increased production capacity will also be extended until the end of this year, 31 December 2012.

This is a part of the government’s efforts to help manufacturers affected by the massive flood last year. Since it will promote machinery and technology improvement to boost production capacity, this policy is viewed as a significant step in enhancing the country’s competitiveness and investment.

With the aim of encouraging entrepreneurs to invest in new machinery for production improvement – automated production systems, for example – the government offers import duty exemption for machinery imported for this purpose. Additionally, participating investors will be entitled to three-year corporate income tax exemption, which is subject to a 70% cap on total investment (not including land and working capital). The tax exemption is based on existing business revenue and it will be effective until 31 December 2012.

Contact MSNA for your Thailand BOI and its flood relief measures questions.

The BOI has recently announced that it would allow 101 companies registered with the Ministry of Labour to continue hiring unskilled foreign workers until 31 December 2012, extended from an earlier announced deadline 31 May 2012. This is a part of the government’s efforts to help manufacturers affected by the massive flood last year.

This measure will also help reduce the impact from the labour shortage in the country although it is just for temporary period only because the BOI also considered Thailand to be moving from labour-intensive to high technology industries so that the need for unskilled labour would be less in the long run. As a result, the board resolved to maintain its policy of not promoting the employment of unskilled foreign workers.

As the BOI had earlier announced its measures allowing the 101 BOI-promoted companies which have registered with Ministry of Labour to hire unskilled labour until 31 May 2012, it further extended this period until the end of this year. The extension was aimed at giving the entrepreneurs sufficient time to prepare for the changes and ease the burden caused by last year flood.

Considering this as a significant agenda for the country, the Board will further discuss this issue with related government agencies in order to prevent or find a solution to possible future labour shortage problems.

Contact MSNA for more information on this recent measure.

When a foreigner has obtained a Thai Work Permit, he or she should always remember that:

1. He/she shall carry the permit with himself/herself, or keep it at the place of work while working, ready at all times, for presenting to the competent official or the registrar. Any permit holder who violates or fails to comply with the foregoing shall be liable to a fine of not exceeding Ten Thousand Baht.
2. He/she shall engage and perform works only in the particular type of work or job description, and with an employer in certain locality or place of work under stipulated conditions as permitted. Any permit holder violates or fails to comply with the foregoing shall be liable to a fine of not exceeding Twenty Thousand Baht.
3. Prior to the expiration of the permit, he/she shall submit an application for the permit renewal to the registrar. Any work permit holder who violates or fails to comply with the foregoing and still continue engaging in the work performance as specified in the permit without permission shall be liable to imprisonment for a term of not exceeding five years or to a fine from Two Thousand Baht to One Hundred Thousand Baht, or to both.
4. In case where it appears that a permit holder violates or fails to comply with the conditions stated in the granted permission, the registrar shall have the power to revoke the work permit.

Contact MSNA for your work permit needs.

In Thailand, the provision of services rendered within the country is generally subject to 7% VAT as Thai VAT rules are concerned. However, zero-rated VAT treatment can be applied if the provision of services is considered as “exported” under Section 80/1(2) of the Revenue Code in line with the procedures and conditions as specified under the following Notifications:

1. Notification of the Director-General on VAT (No. 105) dated 12 July 2000

Prior to 29 March 2011, the export of services must meet the following criteria:

1. The provision of services is performed in Thailand to the recipient of services overseas, and
2. The result of such services is delivered for use entirely outsideThailand.

2. Notification of the Director-General on VAT (No.181) dated 29 March 2011

According to the new Notification that has been effective since 29 March 2011, the service is partially used in Thailand, the VAT operator (i.e. the service provider) is eligible for zero-rated VAT treatment only for the part of service that is used overseas.

This new Notification introduces the concept of apportionment and allows for zero-rated VAT treatment for the portion of the services that is used outside Thailand.

Contact MSNA for tax and accounting questions and services.

A foreign business can operate in Thailand by obtaining a Foreign Business License. Hence, the foreign business applicant that has a good chance to be granted a “Foreign Business License” has to have all these 3 characteristics:

1. Being a juristic person (company) registered overseas or Thailand (for example, a Thai registered company with majority foreign ownership).
2. Going to operate business to provide products or services to the private sector, including the private parties that have contracts with government agencies or with other private parties.
3. Having a service contract or sale contract that specifies the name of the foreign business applicant as the contractual party with another private party and the products or services to be provided must involve high-level technology or require specialized skills.

If the applicant is certain that its business has all the above characteristics, here are some criteria to meet in order to be successful in getting the Foreign Business License:

a. The foreign business products or services should involve high-level technology or require specialized skills, which are beneficial for technology transfer to the Thai people;

b. The foreign business products or services should contribute toThailand’s basic public utilities which are beneficial to its socio-economic development (for example, transportation system, tele-communication system)

c. The foreign business should know what industries will most benefit from its products or services and what industrial sectors will the products or services help to grow and become more competitive and more successful.

d. The foreign business needs to have a sales or service contract with the name of the client as the contractual party with the company, showing the scope of the sales or services, terms and conditions and the length of the sales or service period.

Contact MSNA, your business partner in Thailand to your company a Foreign Business License.