20 Juil 2017 Taiwan : A Significant Reform of Labor Law
On December 6, 2016, The Legislative Yuan (Taiwan’s Legislature) passed the amendments to 10 provisions under the Labor Standards Acts. Since January 1, 2017, such amendments have significant impact on employers’ cost and arrangement of human resources, and translate the Government’s new policy which intends to improve the labor condition in Taiwan.
The key points of the amendments are: implementation of a five-day work week; an increase of wage for working on a rest day; reduction of national holidays; increase of days of annual leave; method of arranging annual leave and payment for unused annual leave; rest time between shifts; employers’ obligation to provide information on wage calculation; protection of whistleblowers’/workers’ right to file complaints; and raising fines for violations of the LSA.
Article 23 工資明細 Wage roster
“Except as otherwise agreed to by the parties to a labor contract or when wages are paid in advance on a monthly basis, wages shall be paid on a regular basis at least twice a month; the details of wage computation must also be provided. This shall also apply to wages computed on the basis of piece by piece work.
An employer shall keep a worker payroll roster in order to record entries such as wages payable, the details of wage computation and the total sum of wages paid. This payroll roster shall be kept on file for at least five years.”
This amendment is for the purpose of resolving problems on labor disputes. It is the employer’s duty to preserve the wage roster of the employee. Including every detail related to employee’s wage. When the labor dispute is brought to a court, it is the employer’s burden of proof to provide this wage roster details.
Article 34 輪班制勞工休息時間 Work by rotation and rest period
“If a rotation system is adopted, workers on such shifts shall be rotated on a weekly basis except as otherwise consented to by the worker.
Workers who are on rotation in accordance with the preceding paragraph shall be granted a rest period of at least eleven hours continually.
The date of enforcement of the preceding paragraph amended on December 6, 2016 shall be set by the Executive Yuan.”
Due to the average working hour for workers adopting rotation system is usually overlong. This amendment is to set out the amount of “reasonable rest period”. Employer must review the working contracts of the employees. And see if there is any confliction with the new amendment. Related regulations: Labor Standards Act §§30(8), 49, Act of Gender Equality in Employment §19.
Article 37 國定假日 National holidays
Leaves shall be granted for national holidays, holidays, and Labor Day which are designated as holidays by the Ministry of the Interior and holidays designated by other Central Competent Authority.
The provisions of the preceding paragraph, which was amended on December 6, 2016, shall take effect on January 1, 2017.
This amendment is for the purpose to unify the leaves granted by Standard Labor Act and the leaves granted by the Ministry of the Interior. The Labor Day of May 1st, this holiday is also granted to the civil servant.
For issues concerning working on national holidays and regular leave overlaps the national holidays, according to the administrative rule of Ministry of Labor. The workers should have the national holiday with wages even the regular working time was changed through the article 32(2) and 30-1. The employers may not ask the workers to make up the working hours or reduce the wages according to national holidays.
The workers may work on the national holiday only through negotiation by both sides. Working on national holidays would be recognized as “overtime” and shall receive wages at double the regular rate for work during the national holidays.
Whenever the regular leave or rest day of article 36 overlaps the national holiday, the workers shall be granted another leave for make-up.
But there is a controversy clarification stipulate in paragraph 3 of the administrative rule. Demonstrates a situation of “day of no work (空班日)” for work by rotation. This clarification is criticized that logically nonexistent and creates a loophole for not granting the make-up leaves for national holidays .
Article 74 吹哨者Whistleblower
A worker, upon discovery of any violation by the business entity of the Act and other labor laws or administrative regulations, may file a complaint to the employer, competent authorities or inspection agencies.
An employer may not terminate, transfer, reduce the wages of, or harm the rights and benefits in accordance with the law, contract or norm of such a worker nor take any unfavorable measures against the worker who files a complaint in accordance with the preceding paragraph.
If the employer commits any of the actions mentioned in the preceding paragraph, that action shall be null and void.
Upon receipt of a complaint of the type from the first paragraph, the competent authority or the inspection agency shall conduct the necessary investigations and notify the worker in writing of its handling within sixty days.
The competent authority or the inspection agency shall keep the identity of the complainant confidential and shall not disclose any information which might reveal the identity of the complainant.
For those who violate the provisions of the preceding paragraph, in addition to civil servants being held liable to criminal laws and administratively responsible, shall be liable for damages to the worker.
The central competent authority shall establish the rules and regulations for competent authorities regarding the confidentiality of accepting reported complaints and other matters that must be complied with.
This is the content of Enforcement Rules of the Labor Standards article 48 and 49. By forming these rules into Standard Labor Act, provide a comprehensive protection for Whistleblower and higher the fines up to NT$20,000 to NT$300,000 for employers who violate these rules.
Article 79 違反工時工資罰則提高 Fines for violation of working hours and wages
Employers found to have any of the following conditions shall be subject to fines between NT$20,000 and NT$1,000,000: …
…For those having violations of any of the three preceding provisions, the competent authority, in accordance with the size of businesses, the number of those being violated or the circumstances of the violations, may increase the penalty by an additional 50% above the maximum amount of the legal fine.
Article 36 變形工時 Distribution of working time (Flexible working hours)
A worker shall have two regular days off every seven days. One day is a regular leave and the other one is a rest day.
An employer shall not be subject to the restrictions of the preceding paragraph if one of the following conditions exists:
1. According to Paragraph 2 of Article 30, workers who adjust their regular working hours shall have a minimum of one day of regular leave every seven days and a minimum of four days’ rest every two weeks consisting of the combined regular leaves and rest days.
2. According to Paragraph 3 of Article 30, workers who adjust their regular working hours shall have a minimum of one day of regular leave every seven days and a minimum of sixteen days’ rest every eight weeks consisting of the combined regular leaves and rest days.
3. According to Article 30-1, workers who adjust their regular working hours shall have a minimum of two days of regular leaves every fourteen days and a minimum of eight days’ rest every four weeks consisting of the combined regular leaves and rest days.
When an employer needs his/her employee to perform the work in addition to regular working hours, it shall be added based on Paragraph 2 of Article 32 of the total of extension of working hours. However, if there is an act of God, an accident, or an unexpected event and an employer needs his/her employee to work in addition to regular working hours, then the working hours are not subject to the restrictions of Paragraph 2 of Article 32.
This is the regulation related to the “Distribution of working time” in Article 30 and 30-1 . This new regulation clarify that employees’ regular working hour be distributed into each working days, should have the “regular leave” and the “rest day” according to different distribution model (2 weeks, 4 weeks and 8 weeks). Every 7 days of distributed working hour period shall have one “regular leave”. Meanwhile, employee cannot continuously work for over 6 days . This is the most identical regulation of this amendment.
The extension of working hours combined with the regular working hours shall not exceed 12 hours a day. The total hours of overtime shall not exceed 46 hours a month. The new amendment put the working hours which the employer requires the employee to work on the “rest day” into the overtime total amount regulates in Article 32(2).
But the most controversy issue is the definition of “One Day”. Whether it is the concept of calendar day or 24 hours? The Ministry of Labor clarifies that the concept of “One Day” is continuously 24 hours, and the employer should arrange a reasonable one day for workers of rotation system. But there are some labor disputes according to this definition, and many workers claiming that they do not get enough rest and the definition released by Ministry of Labor twisted the main purpose of “regular leave” . Until now, the Ministry of Labor has not yet releases any new administrative rule to clarify the disputes.
But on the other hand, some workers who wish to have a long period of leave would likely to be effected. For works by rotation, it is the practice of the worker to arrange their leaves and rest days to be gathered for 3~4 days. But they can no longer to have this arrangement due to the new reforms. The workers and the employers must change their practice and some of them would have to hire more men for adopting the new reforms .
Article 24 休息日工作 Wages for working on rest days
An employer shall pay worker overtime wages using the following basis:
1. When the overtime work does not exceed two hours, the worker shall be paid, in addition to the regular hourly wage, at least an additional one-third of the regular hourly rate.
2. When the overtime work is over two hours, but the total overtime work does not exceed four hours, the worker shall be paid, in addition to the regular hourly wage, at least an additional two-thirds of the regular hourly rate.
3. When the overtime work requested is governed by Paragraph 3 of Article 32, the worker shall be paid two times the regular hourly rate.
In accordance with Article 36, an employer shall pay a worker overtime wages when required to work on the rest days. When the overtime work does not exceed two hours, the worker shall be paid, in addition to the regular hourly wage, at least an additional one and one-third of the regular hourly rate. When the overtime work is over two hours, the worker shall be paid, in addition to the regular hourly wage, at least an additional one and two-thirds of the regular hourly rate.
The time and wage computation are to be done using the following basis: When the overtime work does not exceed four hours, it shall be computed as four hours; when the overtime is in excess of four hours and under eight hours, it shall be computed as eight hours; when the overtime is in excess of eight hours and under twelve hours, it shall be computed as twelve hours.
This amendment specify the “rest days” working hours. The principle of working hour recognition is making 4 hours as one unit. Whenever employee works on rest day not exceeding 4 hours, the wages he get is measured on 4 hours as base and with overtime calculation formula. Working for 6 hours on rest day would be recognized for 8 hours wages and working for 10 hours would be recognized for 12 hours wages, with overtime calculation formula .
The 4 hour-unit would also be counted into the monthly overtime limitation of article 32(2) (not exceeding 46 hours a month). The wages of “rest day” may higher than the wages of “regular leave (§36)”, “national holiday (§37)”, and “Annual leave (§38)”.
However, the public concerns are the “4 hour-unit” would most likely to effect the utilization of the 46 hours limitation. Both the workers and the employers demand for “flexibility” for not adopting the “4 hour-unit” to the 46 hours limitation. And because article 24 is in Chapter III “Wages”, instead of Chapter IV “Working Hours, Recess and Holidays”, it may not be the intention of legislator to adopt the “4 hour-unit” to the calculation of overtime limits.
Article 38 特別休假 Annual Paid Leave
A worker who has worked continually for the same employer or business entity for a certain period of time shall be granted annual paid leaves on an annual basis based on the following conditions:
1. Three days for service of six months or more but less than one year.
2. Seven days for service of one year or more but less than two years.
3. Ten days for service of two years or more but less than three years.
4. Fourteen days for service of three years or more but less than five years.
5. Fifteen days for service of five years or more but less than ten years.
6. One additional day for each year of service over ten years up to a maximum of thirty days.
Annual paid leaves from the preceding paragraph are to be arranged by workers. The employer, however, in the light of urgent needs of the business operation or personal factors of workers, may consult and make adjustments with workers. The employer shall inform the worker to arrange the annual paid leaves of the preceding two paragraphs when the employee meets the conditions for the annual paid leaves under Paragraph One.
Wages must be paid for annual paid leaves not used by workers because of the termination of annual or termination of contracts.
The employer shall record the dates of annual paid leaves of workers and the total amount of the wages paid for annual paid leaves have not been taken in the worker payroll roster designated in Article 23 and shall inform the worker in writing every year on a regular basis.
In the case of a claim of rights by workers under this Article, the employer shall bear the burden of proof if the employer considers that the workers’ rights do not exist.
The provisions of this paragraph, which was amended on December 6, 2016, shall take effect on January 1, 2017.
The annual leaves are arranged by the workers the employers can only negotiate with the workers for the adjustment of the leaves. The workers will have more bargaining power by using the autonomy of annual leave. For example, a large number of workers to take the annual leave at a specific period, in order to negotiate for better benefits. Whether this situation would be recognized as “abuse of right” and violated the principle of “good faith”, it is for the court to decide.
No matter what reasons the workers not completing their annual leaves are, the employer must compensate according to the remaining days of workers’ annual leave. The employer may not compel the workers to arrange his/her annual leave either.
The workers who do not complete their annual leave, the remaining leaves may not be postponed to the next year. The employers must compensate according to the remaining days. But if the conditions for the annual leaves are above the Labor Standard Law, or the workers and employers agreed to apply calendar/fiscal year annual leave, then the remaining annual leaves can be negotiated for the compensative wages and postponing to next calendar year.
The Legislative Yuan Gazette, Vol.105, No.96, Minutes of Yuan Sittings.
Once the workers agreed to distribute one regular working day (8 hours) into 4 days, then the 5th day will end up with zero regular working hours, but this 5th day should be recognized as the result of distribution. It cannot be deemed as a “leave” or “rest day”, as a result, when this “day of no work” overlaps the national holiday, the workers shall be granted with another make up leave. But the paragraph 3 of the administrative rule stipulates that there is no need to grant a make-up leave, which is contradict to the law itself. Requires further clarifications from the Ministry.
The business (or industries) designated by the Central Competent Authority:
http://www.cna.com.tw/news/firstnews/201702020238-1.aspx Taiwan Railway workers take annual leave as protest for overtime conditions.
陳業鑫, supra note 3, at 188.
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