本号4月21日发布的文章《法律帮手（双语）|不同意用人单位变更工作岗位，劳动者应当如何处理？》（点击阅读），介绍了中国劳动法相关规定。对同一问题，泰国劳动保护法又是怎么规定的呢？泰国实施多年的《劳动保护法》(The Labor Protection Act)于1998年制定。2018年12月13日正式通过了第7版《劳动保护法》(Labor Protection Act(No.7)B.E.2562)，该法于2019年5月4日正式实施。第7版《劳动保护法》，在遵循国际劳工法标准，加强劳工保护，改善工作条件，对违反劳动法的雇主加以制裁等方面有明显改善，还强化了政府干预雇主和雇员间劳动关系的权力，以保证雇主和雇员间关系的平等性。
二、介绍与分析
在中国，用人单位调整劳动者的工作地点及工作岗位构成对劳动合同的变更；在泰国，雇主作出同样调整的法律性质与中国劳动法本质相同，泰国《劳动保护法》在关乎雇主调整雇工工作地点、工作岗位时，对雇工的保护力度更大。在泰国，若雇主要迁移营业地址，需要至少提前30天，在目前工作地点的明显位置发布公告通知。该通知应当清楚地、充分地说明雇工将迁往何处、何时迁移。如果雇工认为因工作地点的改变影响了其个人或其家庭的正常生活，雇工有权拒绝去新地点工作。雇工拒绝后，应于雇主发布公告通知后30天内向雇主发出书面通知，劳动关系视为在迁移之日解除。中国劳动法律并未因用人单位单方变更工作地点或工作岗位而给予劳动者单方解除劳动合同并可享有经济补偿的权利。但在泰国，其《劳动保护法》第120条规定，若雇主未提前通知而迁移工作地点的，即使雇工同意迁移的，雇主也须支付雇工未预先通知赔偿金，该笔金额不低于最后30天工作薪资；雇工拒绝在新地点工作的，应当在雇主发布迁移公告通知后30天内向雇主发出书面通知，劳动关系视为在迁移之日解除，雇工有权因此获特别遣散费。若雇主没有支付预先通知赔偿金或遣散费，雇工有权在应支付日期后30天内向劳工福利委员会申诉，劳工福利委员会再对其进行审核。经审核后判定雇工有权领到未预先通知赔偿金及特别遣散费，则劳工福利委员会应发出命令让雇主在收到命令或得知命令之日起30天内支付上述费用给雇工。经劳工福利委员会审核后判定雇工没有权利领到上述费用，则劳工福利委员会应向雇主与雇工发出通知说明。也就是说，在这种情况下，雇工未收到变更工作地点的提前通知或不同意变更工作地点，可以依照法律规定领取到未预先通知赔偿金或特别遣散费，若雇主不按时支付，雇工则可以向劳动福利委员会申诉，以维护自身合法权益。泰国《劳动保护法》第118条规定，根据工作年限的不同，支付给雇工的遣散费的金额有所不同（具体见表1）。雇主对连续工作未满120天的雇工可以不支付遣散费。作为对比，中国《劳动合同法》关于解除劳动合同经济补偿金的规定无工作年限门槛，劳动者工作每满一年用人单位则需支付一个月工资；六个月以上不满一年的，按一年计算；不满六个月的，向劳动者支付半个月的工资补偿。对比之下，泰国《劳动保护法》对于工作年限的区间规定更大，在8年以下的年限区间内遣散费不低于中国，8年以上则少于中国。但有一个特殊情形需要注意，根据中国《劳动合同法》第四十七条第二款，“劳动者月工资高于用人单位所在直辖市、设区的市级人民政府公布的本地区上年度职工月平均工资三倍的，向其支付经济补偿的标准按职工月平均工资三倍的数额支付，向其支付经济补偿的年限最高不超过十二年。”
表1 遣散费支付标准
|
工作年限 |
遣散费 |
|
满120天，不足1年 |
支付不少于最后30天工资遣散费 |
|
满1年，不足3年 |
支付不少于最后90天工资遣散费 |
|
满3年，不足6年 |
支付不少于最后180天工资遣散费 |
|
满6年，不足10年 |
支付不少于最后240天工资遣散费 |
|
满10年，不足20年 |
支付不少于最后300天工资遣散费 |
|
超过20年 |
支付不少于最后400天工资遣散费 |
I. Issues and Background
The article Helper丨What Should the Employee Do if He Disagrees With the Employing Entity's Proposal to Change His Job Position? (click here to read), which was published in this account on April 21, had introduced the relevant provisions of China labor laws. Then, what does the Thai labor protection law say about the same issue?
Thai Labor Protection Act, which has been in force for many years, was enacted in 1998. The Labor Protection Act (No. 7) B.E. 2562 was officially adopted on December 13, 2018, and was officially implemented on May 4, 2019. The 7th edition of the Labor Protection Act has significantly improved in following international labor law standards, strengthening labor protection, improving working conditions, and sanctioning employers who violate labor laws, as well as strengthening the government's power to intervene in labor relations between employers and employees to ensure equality in relations between employers and employees.
II. Introduction and Analysis
In China, an employing entity's adjustment of an employee's workplace and job position is considered as a modification to the labor contract. Similarly, in Thailand, the legal nature of the same modification by the employer is same as that of China labor laws, and the Thai Labor Protection Act provides greater protection to the employee when it comes to the employer's adjustment of the employee's workplace and job position.
In Thailand, if an employer wants to relocate its business address, it is required to give at least 30 days' announcement notice by posting a notice in a conspicuous place at the current workplace. The notice should clearly and adequately state where and when the employee will be relocated. An employee has the right to refuse to work at a new place if he considers that the change in workplace will affect his personal or family's normal life. If the employee refused, he shall send a written notice to the employer in 30 days after the employer posted the announcement notice, and the labor relationship is deemed to be dissolved on the date of relocation.
China labor laws does not grant employees the right to unilaterally dissolve their labor contracts and be entitled to financial compensation due to the employer's unilateral modification of workplace or job position. However, in Thailand, Section 120 of the Labor Protection Act stipulates that if the employer relocates the workplace without informing in advance, even if the employee agrees to the relocation, the employer shall pay the employee compensation for without informing in advance, the compensation shall not be less than the last 30 days' salary. If the employee refuses to work in the new place, he shall send a written notice to the employer in 30 days after the employer posted the relocation announcement notice, the labor relationship is deemed to be dissolved on the date of relocation and the employee shall be entitled to special severance payment. If the employer without paying advance notice compensation or severance payment, the employee has the right to appeal to the Labor Welfare Commission in 30 days of the due date for payment. After examining by the Labor Welfare Commission, if it is determined that the employee is entitled to receive the unannounced compensation and special severance payment, the Labor Welfare Commission shall issue an order requiring the employer to pay for the employee in 30 days of the date the order is received or knew. If it is determined that the employee is not entitled to receive such payment, then the Labor Welfare Commission shall issue a notice to the employer and the employee to state. In other words, in this case, if the employee does not receive advance notice of the modification of workplace or receives notice but refuses to modify the workplace, he may receive compensation for without paying advance notice or special severance payment in accordance with the law. If the employer does not pay on time, the employee may appeal to the Labor Welfare Commission to protect his legal rights and interests.
Section 118 of Thai Labor Protection Act stipulates that the amount of severance payment varies depending on the working years (see Table I for details). An employer may not pay severance payment to an employee who has worked for less than 120 consecutive days. As a contrast, Chinese Labor Contract Law stipulates about economic compensation for dissolving labor contracts without a threshold of working years, and the employer is required to pay one month's salary for each year the employee has worked. If the working years are more than six months but less than one year, the calculation is based on one year. If the working years are less than six months, the employee is paid half a month's salary as compensation. In contrast, Thai Labor Protection Act has a greater range of working years, with severance payment being more than in China for working less than 8 years, while severance payment being less than in China for working more than 8 years. But there is a special case need to pay attention, in accordance with Article 47 (2) of China Labor Contract Law, "If the monthly wage of an employee is higher than three times the average monthly wage of employees declared by the people's government at the level of municipality directly under the central government or at the level of a districted city where the employer is located, the rate for the economic compensations to be paid to him shall be three times the average monthly wage of employees and shall be for no more than 12 years of his work. "
Tables I-Severance Payment Standards
|
Working Years |
Severance Payment |
|
120 days ≤ x＜ a year |
Not less than the last 30 days of salary |
|
a year ≤ x＜ 3 years |
Not less than the last 90 days of salary |
|
3 years ≤ x＜ 6 years |
Not less than the last 180 days of salary |
|
6 years ≤ x＜ 10 years |
Not less than the last 240 days of salary |
|
10 years ≤ x＜ 20 years |
Not less than the last 300 days of salary |
|
More than 20 years |
Not less than the last 400 days of salary |
|
✳x indicates the employee's working years. | |
III. Declaration and Acknowledgement
Due to the limited resources available to the author, this article mainly focuses on Thai Labor Protection Act, and the relevant legislation and judicial interpretation have not been consulted yet. If there are any significant amendments to this article, please check in the comments. Please look forward to other articles related to the Thai Labor Protection Act.
Thai Labor Protection Act, which is introduced and used as the basis for this article, is a Chinese version translate by the Economic and Commercial Office of the Embassy of the People's Republic of China in the Kingdom of Thailand. Readers are reminded of possible differences between the Chinese version and the Thai version, owing to translation techniques, or the differences between the social, economic, cultural and legal systems of the two countries.
Welcome to discuss and correct the issues related to the article!
Writer: Li Meng Hang
Translator: Hui Qian
Editor: You Zhe