13 Apr 2018 Taiwan weekly legal update: Annual leaves explanations, patent reform and Draft articles
Explanations concerning the annual leaves extended to the following year.
Question 1: Whether the extension of unused annual leaves could set in a period that less than a year (e.g. 3 months, 6 months)? Whether the agreement of extension could be renegotiated?
The Ministry of Labor:
The unused annual leaves could extend until the following year according to the agreement reached by employers and workers. The extension period is only limited to not exceed one year and extension period could be renegotiated as long as both parties are agreed. Last, the unused annual leaves until the end of the extension period, wages shall be paid to the workers. The unused leaves shall not extend to the third year.
Example: Employer and Workers agreed to have the Calendar Year (Fiscal Year: 31 December) as the reference point for annual leaves. And agreed to have a 3 months extension for the unused leaves in the following year. Worker A has 14 days of annual leaves in 2018. He left 10 days leaves unused and he has an extension of 3 months for the unused in 2019. However, he still has 5 days left until the extension period expired. There are two ways to solve this problem, one is to pay the 5 days wages to the Worker A, the other one is to reach another agreement with Worker A to further extend the 5 days leaves but the extension would not exceed the end of 2019.
Question 2: For the wages of unused annual leaves, how do these wages be recognized in the “Average Wage”?
The Ministry of Labor:
“Average Wage” means the figure reached by taking the total wages for the six months preceding the day on which an event requiring that a computation be made occurs, divided by the total number of days in that period. The “Total Wage” means wages for the six months preceding the day on which an event requiring a computation.
To determine whether the wages for unused annual leaves to be computed in the “Average Wage” or not is decided by the “terminate date” of leaves. Only the termination date was in the 6 months calculate base, could the wages of the unused leaves be recognized in the Average Wage. However, the paid wages for the unused annual leaves belonged to the “original year” of the leaves. The question of how these days of wages could be distributed in the calculation of Average Wage is not regulated by law. The employer and workers could reach an agreement on this issue through negotiation.
As the above example, if the Worker A were to be fired by his employer on 1 April 2019, he still has 5 days unused leaves to be paid, then:
His Average Wage would be calculated in the base of 6 months, from 1 October 2018 to 31 March 2019. And because of his unused leaves are the leaves in 2018, the termination date is in the 6 months base. His wages paid for the unused leaves could be calculated in his Average Wage. But the question of how these days (paid wages) be recognized in the period between 1 October to 31 December 2018, is to be negotiated by both parties.
Reforms for ratifying patent extension.
The Ministry of Economic has released the new amendment of the “Regulations for Ratifying Extension of Patent Term”. The new amendment is to put the procedure extension of the patent term more accessible to the patent right owner.
The Ministry described that the period of domestic and/or foreign clinical trials conducted for obtaining a pharmaceutical approval from the central authority. The “domestic and/or foreign clinical trials” referred shall be limited to those sent by the Specific Patent Agency to the central competent authority and confirmed by the latter for issuing the pharmaceutical approval. Thus, whether the applicant had applied extension based on these clinical trials in a foreign is no longer relevant. As a result, the documents of foreign approval of extension are no longer required in the domestic application. (Amendment to§§5, 7)
The field tests for agrichemicals approvals, the applicant shall conduct at least three times of field tests according to the Agrichemical Field Test Regulations §5. However, the previous regulations stated that the applicant who applies an extension of the patent term during the period of field tests, sequential characteristic in these field tests are required for period recognition in applying for an extension. This regulation has caused certain difficulties in proving the sequential characteristic among the tests. Thus, the amendment to the regulation revokes the requirement of sequential characteristic, but applicant would only apply for extension base on the longest period of field tests.
Draft articles for “ Prevention of Medical Blunder and Disputes Settlement ”.
The FDA of R.O.C. passed the draft articles of “Prevention of Medical Blunder and Disputes Settlement” (translated).
The medical blunder incidents are rapidly rising these years, the relationship between doctors and patients are tensed as well. And it is even a torturing process of the endless litigation procedures for both the blundered doctors and heartbroken patients. Thus the goal of the medical reform starts from the amendment to the “Medical Care Act”. Amendment to the article 82 of the Act, is focusing on the clarifying the legal elements and discretions for upholding a criminal responsibility. The case concerning damages would be determined in the professional point of view in these reforms. And the regulation for “Prevention of Medical Blunder and Disputes Settlement” is the subsidiary regulation of article 82 of the Act. Three principles would be the goal of the medical reforms:
Solicitude and Communication:
Medical institutions with more than a hundred beds should establish the working group of Solicitude and Communication. Institutions under 99 beds, clinics could designate its members or employ experts to take on this service. The purpose of the service is to have an instant react upon the medical blunder, providing care, solicitude for patients and family members, offering explanations and risk control. (Draft article 5)
Municipal Departments of Health shall establish Dispute Mediation for both civil and criminal case within 3 months (extension allowed) (draft article 9, 12, 13). The central authority should establish ad hoc facility provide expert’s opinion and issue pinpointing during the Mediation or Trial. (draft article 4, 25)
Medical Institutions shall establish regimes for Patient Security and Risk Management, and which are not characterized as blame-finding. The goal is to analysis, control, and report whenever a medical blunder occurs. And rearrange the systematic flaws in the institution. The central authority shall establish ad hoc investigation groups when serious blunder occurs. (draft article 31, 32, 33)
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