02 二月 2018 Taiwan weekly legal update: Policy for labor reforms
Draft amendments to “Enforcement Rules of the Labor Standards Act”.
The Legislative Yuan has passed several amendments to the “Enforcement Rules” of the Labor Standards Act to supplement for the latest labor reforms. These amendments will be taken into effect on March. And the Ministry of Labor is gathering opinions from the market for these amendments.
The Ministry described that the principle of “Two-day rest per week” remains untouched, but only by adding several mechanisms for both the employers and employees as flexibilities to some extends. And as for the controversial issues such as 3 monthly overtime(OT) hours, records system, OT for compensatory leaves and deferred annual leave are explained in the enforcement rules. The following are the brief introductions to these amendments:
1. As for the exceptional situations of shifting the total amount of OT hours among three months, this mechanism should only apply to a consecutive three months period. (Enforcement §22)
2. An employer who wishes to apply for “exceptional situations” of Labor Act shall report to the municipal authorities at least one day before application. (Enforcement §22-1)
3. The mechanism of “OT hours for compensatory leaves”, employer shall apply either one plan stated as following: (Enforcement §22-2)
A. Plan A: the mechanism of “OT hours for compensatory leaves” should be regarded as annual leaves which the compensatory leaves should be taken by the end of the year (whether the business applies to the calendar year, accounting year… etc.) and be paid as wages accordingly once the compensatory leaves not taken.
B. Plan B: The compensatory leaves should be taken by the end of every 31 December. And wages should be paid accordingly once the compensatory leaves not taken.
4. One “regular leave” in a week should be viewed in a calendar week. The employee shall not ask the employees to work consecutively more than six days. (Enforcement §22-3)
5. The employees who choose to defer their remaining annual leaves to the next year, they should prioritize their deferred annual leaves in the second year. (Enforcement §24-1)
6. The employer shall specify the period of exceptional arrangement and workers shall have the right to know.
Taiwan foreigner recruitment act is on the way.
The Premier has declared that the act for “Recruitment and Employment of Foreign Professional Talent” shall take effect on 8 Feb. 2018; supplement mechanism shall be introduced as soon as possible. The Executive Yuan has designated “Contact Taiwan” as the single website for foreigners to get access to every related application. Foreigners could get access to applications like work permits, alien residency and get access to resources of government authorities through the website.
The National Development Council described that the foreigner recruitment act is focusing on foreigners with professional skills and talent. Taiwan provides several incentives on residency, permanent residency, retirement pensions and family members for foreigner who wishes to work in Taiwan.
For further information please find our Blog post: Taiwan Foreign Recruitment Act
The Ministry of Labor has announced several industries applicable for “exceptional situations” and rules clarifications.
Regarding the shifting period of §34 (2)：
After several examination and evaluation of the Central Authority, state-owned enterprises such as Taiwan Railway, Tai-Power, Tai-Sugar and CPC Taiwan. Due to their special condition within their human resources and internal structure, the Ministry approved that the state-owned enterprises could apply to exceptional shifting arrangements during their transitional period of labor reforms: the rest period of workers “no less than 8 hours between shifts”. And this exceptional arrangement should be terminated immediately as soon as the approved time expired.
Regarding the designated industries of §36(4):
The Ministry has listed several industries that are applicable to this exceptional arrangement on regular leave: Employers could arrange the regular leaves and rest period within “7-days”. But an employee may not work consecutively more than 6 days. The designate industries which may apply to the exceptional arrangements should possess either one of the following factors: Time, Location, Characteristic and exceptions.
Regarding flexible working hours within 8 weeks §30(3):
The Ministry has demonstrated several industries like “wedding photographer”. There are multiple events in the traditional wedding ceremony of Taiwan. Thus, wedding photographers would always have to make special arrangements during their regular working hours.
“Metro Transportation industries”: there is peak/low season, and off/rush hours in the transportation industries. The facilities maintenance and regular transportation share the different concept of working hours. Thus, the employers could make flexible working-hour arrangements between 8 weeks.
Special type of workers §84-1:
The tour guide is a special type of worker that he/she is responsible for the safety and travel of the clients at all time. It is hardly possible for the tout guide to take regular leaves and rest period during travel. The undertaker of burial is also a special type of worker due to its procedure of services and interaction with clients. Thus, the Ministry has approved that tour guide and undertakers of burial could apply to the flexible arrangement of §84-1. Workers may arrange their own working hours, regular days off and shall not subject to the restrictions imposed by Articles 30, 32, 36, 37 and 49 of the Act.
For Further information on the list please find: Ministry of Labor announcement
The Ministry made further clarifications on disputes among the labor reforms. The Ministry has declared that application for exceptional situations will have to submit to competent authorities and the Ministry for approval. The designated industries will have to apply to the conditions sets out for them.
The Ministry and local competent authorities will review the application on a case-by-case basis. There must be an exceptional situation exist could the industry apply exceptional arrangements in the specific week. The Ministry also reaffirmed that worker shall not work consecutively more than 6 days except for working abroad, on warships, on aviation, in national exams or public facilities maintenance. (exceptional situation: characteristic factor)
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