What should a Secondment Agreement include under Thai law?

1. Definitions and Interpretation
2. Secondment and Consent
3. Secondment Period and Return
4. Direction, Working Time and Discipline
5. Salary, Benefits and Expenses
6. Charges
7. Right to Work and Immigration
8. Health and Safety
9. Liability and Indemnities
10. Intellectual Property
11. Confidentiality
12. Personal Data
13. Non-Solicitation
14. Governing Law and Disputes
15. General

• A secondment for a charge is likely to be treated as a hire of work or services (Instrument 4 of the Stamp Duty Schedule), because the Home Employer provides the Employee's services to the Host for a fee. Duty is 1 THB for every 1,000 THB or part of 1,000 THB of the charges. On the Contract Value you entered, the duty on the original is the amount the system calculates from the figures entered, and each counterpart carries the amount the system calculates from the figures entered.Because the charges are in …, convert the Contract Value to Thai Baht at the exchange rate on the date of signing and calculate the duty on the Baht amount.
• Clause 6.4 makes the Home Employer pay the duty. If the actual charges exceed the Contract Value, for example because the Secondment is extended, additional duty is due. If the Agreement is signed electronically, pay the duty through the Revenue Department's e-Stamp Duty system within 15 days after signing.
• An unstamped agreement cannot be used as evidence in a Thai civil court until the duty and a surcharge are paid (Revenue Code section 118).- A secondment without any charge between the companies is not an instrument listed in the Stamp Duty Schedule, so no stamp duty is payable.
• A power of attorney used to sign for a company carries stamp duty of 10 THB for a single act or 30 THB for more than one act (Instrument 7).

• The Home Employer stays the employer (Clause 2.3). The Employee's consent is essential: under the Civil and Commercial Code an employer may not transfer its rights to an employee's services to a third person without the employee's consent (section 577), and under the Labour Protection Act a change of employer needs the employee's consent and carries over all accrued rights (section 13). All three Parties must sign.
• Do not use a secondment to supply workers for the Host's ordinary production or business on a continuing basis. If the Host uses people supplied by another business as part of its own production or business, the Labour Protection Act treats the Host as their employer and requires fair and non-discriminatory benefits compared with its direct employees (section 11/1). For supplied staff, use a staffing agreement instead.
• The Home Employer must keep paying salary and benefits even if the Host does not pay its charges (Clause 5.2).

• The Employee may start work only after the work permit is issued (Clause 7.1). Working, or allowing someone to work, without a valid permit is an offence for everyone involved.
• A Thai work permit is issued for work at a particular organisation in Thailand, which is usually the Host. That can make the Host responsible to the authorities as an employer (Clause 7.2). Check the current requirements with the Department of Employment and the Immigration Bureau before fixing the start date, and agree in advance who withholds tax on the Employee's income.
• The Employee must report to immigration every 90 days and keep the passport valid.

• The country of work decides what permission the Employee needs. Obtain it before travel (Clause 7.1); a business visa is often not enough for real work.
• Tax and social security are the most common surprises. Income for work performed abroad may be taxable there, and Thai residents may also have Thai tax to consider. Get advice before the start and give the Employee the written explanation that Clause 7.3 requires.
• Sending the Employee's personal data to the Host abroad is a cross-border transfer under the Personal Data Protection Act (sections 28 and 29). Share only what the Host needs (Clause 12.1).

• If the Home Employer is in Thailand and registered for VAT, it adds VAT to the charges. If it is abroad, a Thai Host usually self-assesses VAT on services used in Thailand and pays it with Form Por.Por. 36 (Clause 6.3).
• Charges paid to a Home Employer abroad may be subject to Thai withholding tax, and a double tax treaty may reduce or remove it. Ask an accountant before the first payment, especially because you chose gross-up, so the Host bears the withholding tax on top of the charges.
• A charge at cost with no mark-up may still be treated as income of the Home Employer. Keep the monthly statements of Employment Costs that Clause 6.2 requires.- A free secondment between related companies can raise transfer pricing questions, because the Host receives a service without paying for it. Ask your accountant whether a cost recharge is expected.

• The Host directs daily work, but only the Home Employer may discipline or dismiss (Clause 4.5). Hosts should report concerns in writing within 5 Business Days rather than act on their own.
• Keep a record of working time and overtime at the Host, because the Home Employer must pay overtime (Clause 4.3).
• Agree in writing any extension before the end date (Clause 3.2). A Secondment that simply continues without paperwork creates doubt about who the employer is.
• At the end, the Employee returns to the same or an equivalent position (Clause 3.6). Ending the Secondment is not a termination, and it must not be used to reduce the Employee's rank or salary.

• Under the Copyright Act, copyright in a work created by an employee belongs to the employee unless they agree otherwise in writing with the employer (section 9). The Host is not the employer, so Clause 10.1 contains a written assignment signed by the Employee, which also satisfies the rule that a transfer of copyright must be in writing (section 17).
• The right to apply for a patent for an invention made by an employee in the course of employment belongs to the employer (Patent Act section 11), which is why the Home Employer also assigns its rights. An employee inventor keeps the right to special remuneration if the employer benefits from the invention, and a contract cannot remove it (section 12).

• All three Parties must sign. Give each Party a complete copy with both Schedules.
• For a foreign company, ask for a recent certificate of incorporation and evidence of the signatory's authority.
• Disputes about the employment go to the Labour Court (Clause 14.2), which works in Thai. A Party relying on this Agreement or on English emails must file a certified Thai translation.

Compiled from the notes that accompany the English contract templates on this site, published by Phuwara Krobtaku (ภูวรา ครอบตะคุ), Thai attorney-at-law, licence no. 477/2558. The short answer and summary at the top of this page are put together by the site from the template's clause headings and notes. Statutes are quoted only in the official Thai text: Thai is the only official language of Thai legislation, and an unofficial translation can mislead. Article registry OKC-CA80F8. If you reuse this content, please credit the author and link to the original.