Page 287 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

ฉบับพิเศษ ประจำ�ปี 2564

an employer has the obligation to pay a leave allowance becase they constitute business
and administrative disabilities attributable to the employers, and therefore fall under

the category of “reason attributable to the employer” set forth in Article 26 of the Labor
Standards Act.

Employers have two main ways to reduce their employees’ pay. The first is
to reach an agreement with the employees. In principle, an employer and employee

are free to discuss and agree on payment terms for a reduction in working days or hours.
In the current climate where many employers are struggling to survive, employees may

agree to accept a lower pay. However, employers need to make sure that the basis for
the request is reasonable. Because employees are typically in a weaker bargaining
position, any agreement must be of the employees’ own free will and not in any way

coerced.
If the employees reject a pay reduction, the employer may be able to unilaterally

revise their rules of employment to provide for lower pay, under condition that
the reduction is reasonable. Employers may be justified in taking such action if the pay
reduction and the procedures in connection with those reductions are fair and reasonable

under the circumstances. Where reasonable grounds exist (e.g. a business slowdown
due to the COVID-19 outbreak), an employer can unilaterally reduce the number of

work days as long as the employer pays at least 60% of employees’ salaries for days
on which they are not required to work. Also, in such a case, it is permissible to reduce
working hours and proportionately reduce salary provided that at least 60% of an

employee’s salary is paid, even if the number of working hours are reduced to less than
60% of the number of regular work hours. In addition, the employer must provide

the employees with a full and complete explanation of the contemplated changes to
the rules of employment (which are necessary for a pay reduction), as well as fair
opportunity for discussions about the pay reduction.

At present, in order to establish a system in which employees can take leave,
it is advisable, at the request of the government, that each company pays over 60%

of basic salary in accordance with the employment regulations.

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