This Memorandum is in response to the issues raised by Khun Chavisa in an email of 4 June 2015 and as discussed with our Khun Mongkol, in connection with a proposal to enhance the welfare of employees at Yves Rocher by providing 5 additional days of annual vacation entitlement to all employees at Yves Rocher, in addition to the current 10 days of annual vacation entitlement, so that all employees would be entitled to a total of 15 days annual vacation leave (the “Proposal”).
The specific issue (which is paraphrased here for the sake of completion) that has been raised by Khun Chavisa in relation to the Proposal, is whether the 5 additional days of annual vacation entitlement would render the Yves Rocher employees - on receiving and/or exercising the 5 additional days of annual vacation entitlement - subject to additional tax liability under applicable Thai tax laws. A. Qualifications and Assumptions:
The advice in this Memorandum is:
i. Limited only to legal advice on Thai labour law and taxation relevant to the specific inquiry;
ii. Only legal advice, and does not contain or constitute any other kind of advice, including, without limitation, business, accounting or investment advice;
iii. Not in relation to any other laws or regulations beyond Thailand’s legal jurisdiction;
iv. Based solely on the factual information provided by Khun Chavisa/ Yves Rocher; and
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v. Is subject to change depending on additional or altered facts, documents or information we receive.
This Memorandum is also based on the assumption that the Proposal is in relation to Yves Rocher employees receiving monthly salaries, and not any daily paid workers.
B. Applicable Law:
Revenue Code:
Section 39. [Definitions] In this Chapter, unless the context otherwise requires:
“Assessable income” means income taxable under this Chapter, and includes properties or any other benefits received which are ascertainable in terms of money, and amount of tax and duty paid for the taxpayer by the payer of income or by any other person in respect of any category of income under Section 40, and tax credit under Section 47 bis. …
The Labour Protection Act (“LPA”): Section 5. [Definitions] In this Act, …
“Wages” means money agreed between an Employer and an Employee to be paid in return for work done under a Contract of Employment for regular working periods on an hourly, daily, weekly, monthly or other period of time basis, or on the basis of piecework done during the normal working time of a Working Day and includes money to be paid by an Employer to an Employee on Holiday and on Leave during which the Employee does not work but is entitled to the money under this Act;
Section 56. An Employer shall pay Wages to an Employee equivalent to Wages of a Working Day for the following holidays:
(1) A weekly holiday, except for an Employee who receives Wages calculated on a daily, hourly or piece rate basis;
(2) A traditional holiday; and
(3) Annual Holidays.
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Section 68. For the purpose of calculating Overtime Pay, Holiday Pay and Holiday Overtime Pay for an Employee who receives Wages on a monthly basis, an hourly wage rate on Working Day means the monthly Wages divided by the product of thirty and the average number of working hours on a working day
C. Opinion:
An employee who has worked continuously for one full year is entitled to an annual vacation of not less than six working days. Entitlement to additional annual vacation leave constitutes employee welfare additional to that prescribed under the LPA, but once such additional benefits are conferred on employees, they cannot be revoked without the consent of employees.
While Section 68 of the LPA prescribes (among other things) that calculation of Holiday Pay for monthly wage/salary earners requires dividing such wage/salary by 30 and the number, this provision is not directly relevant to the matter at hand in that calculation of holiday pay is not in question. Under Section 56 of the LPA, employees are entitled to receive their wages/salaries during their annual vacation, irrespective of the length of their entitled period of vacation. It should be noted that Section 56 of the LPA is interpreted in such a way that employees are entitled to payment of the wages/salary for or during their holidays, but not in addition to their wages/salary.
Under the Proposal, the employees of Yves Rocher would receive their salaries monthly, which would include salaries/wages during the weekends, holidays and annual vacation. Hence, the wages/salaries of employees would be unaffected upon implementation of the Proposal. The only difference is that employees would be entitled to 5 additional days of annual vacation, which if exercised, would mean that the employer is voluntarily releasing the employees from their obligations and the employees would not be required to attend work for an additional 5 days per year, but they would still be entitled to the same salary/wages that they are currently receiving. Therefore, the employees would not receive any additional gains that would be subject to any personal income tax.
Hence, the assessable income of employees, as defined under the Revenue Code, would be unaffected if the Proposal is implemented, and as the Proposal would not alter the assessable income of Yves Rocher employees, they would not be subject to additional tax liability if the Proposal is implemented.