At present, many businesspersons, especially foreigners, are not aware of or do not understand whether or not they need to allow their employees to have days off on the traditional public holidays such as Visakhabucha Day, Asarnhabucha Day, Chulalongkorn Memorial Day, Chakri Day, etc. as announced by the government, or whether or not they are able to postpone such public holidays and allow their employees to have days off on other days rather than such public holidays. This can cause many problems in the management of a business as employers may be faced with legal proceedings brought upon by their employees and be penalized by relevant laws. Therefore, in order to bring an understanding to the issue of traditional public holidays, details of the same are laid out below.
Section 29 paragraph 1 to 3 of the Labour Protection Act B.E. 2541 (1998) (the “Labour Protection Act”) provides an obligation of the employer to announce to their employees the list of traditional public holidays in advance, i.e. government public holidays and religious and customary public holidays according to the announcement of the Minister of the Ministry of Labour. The total number of public holidays shall not be less than 13 days per year including Labour Day, and if a public holiday falls on a weekly day off, the employer shall allow such employees to have substituted days off for such public holidays on the following working day. If an employer violates such provision of the Labour Protection Act, the employer shall be punished in the form of a fine at not more than 20,000 Baht pursuant to Section 146 of the Labour Protection Act.
Supreme Court Decision No. 11182/2553 resolved in accordance with the above provision that an employer had the obligation to announce the traditional public holidays to the employees and to allow the employees to have days off on such public holidays. If the employer requested the employees to work on those days, the employer had to pay remuneration on holiday at the rate specified by law to the employees. The announcement by the employer to postpone such public holidays to be on other days in place of such government public holidays and religious and customary public holidays would not be enforced under the law. Such postponement also would not waive the obligations of the employer and the rights of the employees from taking days off on those public holidays as specified in Section 29 of the Labour Protection Act.
However, Section 29 paragraph 4 of the Labour Protection Act provides an exception to the employer who is not able to allow the employees to have days off on the public holidays due to the nature and condition of work. Such paragraph 4 allows the employer and employees to agree to postpone such public holidays to be on other days or the employer is obliged to pay remuneration on holiday to the employees instead of allowing such employees to take days off on those public holidays. The Ministerial Regulations No. 4 (B.E. 2541 (1998)) issued under the Labour Protection Act B.E. 2541 (1998) (the “Ministerial Regulations”) prescribes the work which falls under such exception as hotel businesses, entertainment places, food selling shops, beverage selling shops, clubs, associations, hospitals and tourism service establishments or work in the forest, rugged terrain, transportation and work that is of a description or nature that must be carried out continuously and if interrupted, would cause damage to the work itself. If the nature and condition of work is as specified in the Ministerial Regulations, the employer is able to enter into an agreement with the employees to postpone those public holidays to be on other days or the employer shall pay remuneration to the employees in place of allowing the employees to take days off. If the nature and condition of work is not prescribed under the Ministerial Regulations, the employer is not allowed to postpone such public holidays to be on other days.
Due to the provisions of the labour law being related to the public order and good morals of the people, the employer and employee are not able to enter into an agreement to change such provision of law. If any person violates such provisions, that person shall be penalized as specified by law except where specified otherwise in the law.