Traditional Holidays and Working on Traditional Holidays

According to the announcement of the Ministry of Labour and Social Welfare, 1 May is National Labour Day. In such regard, employers often ask whether they must always set a traditional holiday on National Labour Day, as well as what days can be chosen as traditional holidays.

Under Thai Labour Law, an employer is obliged to announce in advance at least 13 days per year of traditional holidays, which must include a ‘Labour Day’. For the other remaining 12 traditional holidays, the employer must select its traditional holidays from national holidays, religious holidays and customary holidays. If any traditional holiday falls on a weekly holiday, an employee is entitled to a substitute holiday on the next working day. This is in accordance with Section 29 of the Labour Protection Act, B.E. 2541 (1998) (the “LPA”). In addition, Section 146 of the LPA imposes a fine of up to Baht 20,000 in an event where the employer fails to provide traditional holidays to an employee as required by the LPA.

Based on the above legal provision, it is clear that the employer must announce traditional holidays only from such national holidays, religious holidays and customary holidays, and a ‘Labour Day’ must be included. If the employer announces any other days as traditional holidays to the employees, even though a day-off with pay on a normal weekday is provided to its employees, the employer is still deemed as not fulfilling its obligation pertaining to fixing and providing traditional holidays for its employees. In such a case, the employer may be subject to the penalties mentioned above, as well as holiday pay for requiring the employees to work on days supposed to be traditional holidays, irrespective of whether or not days off are given in substitution. This has been affirmed by Supreme Court’s decision no. 11182/2553.  

Exemptions

There are certain types of work for which the LPA recognises that employer may be unable to allow the employees to take traditional holidays, as prescribed under Ministerial Regulation No. 4 (B.E. 2541) (1998) issued under the Labour Protection Act, B.E. 2541 (1998), as follows:

1. Employees who work in the business of hotels, theatres, restaurants, refreshment stalls, clubs, associations, medical facilities and tourist attractions; and
2. Employees who work in the forest, work in the wilderness area, as well as transportation work and work where the nature or condition of the work requires it to be performed continuously and stoppage may cause damage to the work output.

Based on the aforementioned, it can be seen that the nature of the work under (1) is work that is necessary for the consumption of the general public. As for the work under (2), it may require a longer period of travelling time than other ordinary work. Consequently, the law allows the employer to agree with the employee that any other days (besides Labour Day and said national holidays, religious holidays and customary holidays) may be taken as a traditional holiday; or the employer may require the employee to work on such traditional holiday and pay holiday pay to him or her instead.

Work on Holidays

All employees are paid for days-off on traditional holidays but what would happen if the employer requires the employee to work on traditional holidays? In the case where the employer demands the employee to work on traditional holidays, Section 62 of the LPA provides that holiday pay must be paid in return. If the employee comes to work on traditional holidays, he or she will be entitled to receive holiday pay, as follows:

1. For an employee who is entitled to wages on holiday (e.g. employee who receives a monthly wage),  the usual hourly wage rate will be paid on the working day as per the actual working hours performed by the employee on such holiday, in addition to the full day’s payment the employee already receives for such holiday.
2. For an employee who is not entitled to wages on holiday (e.g. employee who receives a daily wage, an hourly wage or a wage calculated on work output), twice the hourly wage rate will be paid on the working day as per the actual working hours performed by the employee on such holiday.

In light of the aforementioned, employers should ensure that they have complied with the law in order to avoid being charged with criminal penalties as stipulated under Section 144 of the LPA, which are a term of imprisonment of up to six months or a fine of up to Baht 100,000, or both; and/or default interest on the outstanding holiday pay to be paid to the employee until completion of payment.

This is intended merely to provide a regulatory overview and not to be comprehensive; it is NOT a provision of legal advice. Should you have any questions on this or on other areas of law, please contact the following:

Chanakarn Boonyasith            
Partner     

Pattaranun Hanwongpaiboon
Associate

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