More working days, less national holidays


#21

Here we go again… Please, please, show us where this is written! :notworthy:

The Employment Service Act and its related regulations have different provisions for foreign white/blue collar workers (though without using those words), but the Labor Standards Act does not discriminate on the basis of nationality and is applicable to everyone the Ministry of Labor (formerly the CLA) says it’s applicable to. Most jobs are now covered, including buxiban teachers.[/quote]

I can’t show you the legal statements, but I know for a fact there are different labour status for many groups of workers in Taiwan, differentiating by private vs public, blue collar vs white collar, contract worker vs permanent, full-time vs part-time, also by profession such as public school teachers and civil servants who do not get labour day off (because they are ‘officials’ or ‘teachers’ not lowly private sector ‘laborers’) and some groups of workers aren’t allowed to strike. Then you’ve got the folks not covered by the labour act such as caregivers and labourers.
Note Im talking about public school teachers not buxiban teachers.[/quote]
So in other words, your information is based on what people who should know about these things – lawyers, civil servants, etc. – have told you. Okay. Now if you want to avoid the “Chinese whispers” effect, you need to be careful about how you pass on their wisdom. It’s one thing to say the LSA doesn’t apply to everyone, which is true. It’s another thing to say the LSA only applies to blue collar workers, which is false.

The LSA was written (in 1984) with blue collar workers in mind, hence the list of blue collar industries in Art. 3 Par. 1, but note Subpar. 8, which lets the government add more industries without needing to amend the law. They keep adding more, including white collar industries, and what matters is whether or not a specific industry/occupation has been added to the list, not whether it’s blue or white collar. For an explanation in Chinese, see english.mol.gov.tw/6386/6394/6396/6475/. If you read through the LSA, you will find no mention of collar color nor the formal definition that refers to Art. 46 of the Employment Service Act.

You will also find no full-time/part-time distinction, and the government addressed the confusion about this by publishing the rules for modifying some of the LSA’s provisions to meet the needs of part-time workers and their employers. Unfortunately, this document (僱用部分時間工作勞工應行注意事項, precautions on the employment of part-time workers) is only available in Chinese: mol.gov.tw/topic/23616/23624/23631/ (pdf). For holidays, the rule is that if you’re part-time you still get paid for a holiday if it’s a day on which you would have worked. I have met city-level civil servants who contradicted each other about this, but when I asked the MOL (the “Central Competent Authority” referred to in the LSA) in writing they said holiday pay can only be denied if the day in question is “非原排定”, not originally scheduled.

If by “contract worker vs permanent” you mean what the official translation of LSA Art. 9 calls “fixed term contracts and non-fixed term contracts”, most provisions (including holidays) apply to both types of contract.

If you mean independent contracting, that’s technically not “employment”. When there’s ambiguity as to the nature of a relationship, the Civil Code governs how the relationship should be described (based on the actual situation, not the contract). In practice, lawyers and civil servants confronted with the 雇傭 vs. 承攬 (“hire of services” aka employment vs. “hire of work” aka contracting) issue will ask mostly the same questions as their counterparts in other countries where “sham contracting” is an issue. There’s no magic number of hours after which a person becomes an employee (unlike one of the recent Uber cases in the US), but the amount of control/independence in the relationship matters. For most foreigners, true independent contracting is impossible to do (legally) because a work permit won’t be granted without an employer, and working through an agency will in most cases be classified as 勞動派遣 (labor dispatching), which has been covered by the LSA since 1998. If your employer subcontracts you to a client, you’re still covered by the original contract and by the LSA, so for example if the client refuses to pay double for work you perform on a holiday, your employer can’t use the client’s refusal to pay as an excuse not to pay you.) This is explained in 勞動派遣權益指導原則 (guiding principles for labor dispatching rights & interests), published by the CLA as 勞資二字第0980126335號函 and available on the MOL’s website. They also have an annotated draft of the Dispatch Worker Protection Act; search for 派遣勞工保護法草案總說明.

There’s also 委任 (“mandate” in the Civil Code, “appointment” on the MOL’s English site), which means you’re handling someone’s affairs, possibly in exchange for money, but not in a “hire of services” or “hire of work” relationship. This is the basis for excluding executives from the LSA, as explained by the MOL at english.mol.gov.tw/homeinfo/6457/6558/6576/: “In the Labor Standards Act, a worker means a person who is hired by an employer to do a job for which wages are paid. If the executives are appointed by the company according to the Corporate Act [aka the Company Act], they have bigger autonomy over their job responsibilities since they have an appointment relationship with the business entity. As a result, executives appointed by the company to run the company business are not worker/labor defined in the Labor Standards Act.”

Yes, civil servants are special, as we’ve discussed before. (All Forumosans who are Taiwanese civil servants, please raise your hands. :slight_smile: ) Public school teachers are also special, as are private school teachers who only teach and don’t perform administrative or other work. For any job that isn’t covered, if there’s no other law or regulation to set its standards, the working conditions are set by the contract. The ESA always applies, but it doesn’t have much to say about working conditions. If you have a union, you’re subject to its collective agreement, but if the LSA is also applicable then the collective agreement can’t violate the LSA’s minimum standards. The LSA doesn’t address the right to strike.

The bottom line is that Taiwan does not have an Australian style “award” system where almost every conceivable job has different working conditions set by law. It has a general set of standards, which by 2014 had become applicable to 94.3% of the workforce according to the MOL (english.mol.gov.tw/homeinfo/7040/7739/), and I dare to surmise this includes the majority of Forumosans, though perhaps not the top 5% by number of posts. So this is my generalization, that most workers in Taiwan are entitled to 12 holidays in 2016, regardless of whether or not their employers think so.

If you want to continue intoning the “blue collar only” mantra, please get it in writing from the MOL (which you can’t, because it’s not true).

Happy Boxing Day! :wink:


#22

You may or may not be right in a given part (I’m going to wait until I’m in the mood to parse that DENSE piece of text :sunglasses: ), but the law and enforcement of the law are two very different things in Taiwan.

Contract workers are given terms of less than a year or moved to another employer to avoid being given permanent labour rights.
Part-timers under a certain number of hours per week are not entitled to things like health insurance if I remember right.
Some employers ask their employees to agree to changes in the contract and then they are given a new contract. You can disagree but you’ll find yourself moved out of the company pretty quickly in many cases.
Then there’s the notorious ‘unpaid leave’ system where companies can treat permanent workers as ‘workers on demand’.
There’s lot of tricky stuff like that.

And Taiwanese bosses can use the law or business practices against you if you stir up trouble, for instance by withholding the ‘leaving contract document’ or spreading rumours about you. For foreigners who depend on work permits they’ll try screwing around with that.
I’m not saying one can’t take a stand, but it’s going to be a LONELY struggle in the Taiwanese workplace.

It seems likely that you haven’t had the WONDERFUL experience of working in numerous Taiwanese enterprises that I have. :2cents:


#23

Yep. I also have to go through that text as it contradicts experience, contract contents and assorted real life, in the 20 years I have been here. But hey, he’s taken such lenghts…

Anyways, I guess we may have less than 5 Forumosans as public servants, as that means passing civil service tests, proper educational background and nationality constraints - double nationality barred. The rest are mere contract employees.


#24

[quote=“headhonchoII”]You may or may not be right in a given part (I’m going to wait until I’m in the mood to parse that DENSE piece of text :sunglasses: ), but the law and enforcement of the law are two very different things in Taiwan.

Contract workers are given terms of less than a year or moved to another employer to avoid being given permanent labour rights.
Part-timers under a certain number of hours per week are not entitled to things like health insurance if I remember right.
Some employers ask their employees to agree to changes in the contract and then they are given a new contract. You can disagree but you’ll find yourself moved out of the company pretty quickly in many cases.
Then there’s the notorious ‘unpaid leave’ system where companies can treat permanent workers as ‘workers on demand’.
There’s lot of tricky stuff like that.

And Taiwanese bosses can use the law or business practices against you if you stir up trouble, for instance by withholding the ‘leaving contract document’ or spreading rumours about you. For foreigners who depend on work permits they’ll try screwing around with that.
I’m not saying one can’t take a stand, but it’s going to be a LONELY struggle in the Taiwanese workplace.

It seems likely that you haven’t had the WONDERFUL experience of working in numerous Taiwanese enterprises that I have. :2cents:[/quote]
You don’t need to convince me that Taiwan is full of rotten employers. I was convinced long ago! We all have our struggles, and some of us have lonely struggles, but what I’m talking about is what the law actually says, not how frequently the law is violated.

On that note:

  1. You don’t need to be a permanent employee to get most of the rights listed in the LSA and related laws/regulations. You have those rights as long as you’re employed (and if denied you can claim them within a certain number of years after the fact).

  2. What you remember about part-time work may have been correct when you heard it, but (now) you have rights even if you work one hour per week, subject to the “precautions” mentioned above. How long you’ve worked (by date not by hours) determines whether you can get paid maternity leave at 100% or 50% of your salary (LSA Art. 50), and I think there’s a similar thing for some categories of sick leave. NHI is based on residency, so you can still have it if you’re unemployed but legally resident (with an ARC etc.).

  3. If both parties agree to amend the contract, that’s fine. If the amendment restricts your rights without conforming to the requirements for such restriction, it has no effect (Civil Code Art. 17 and 247-1). You can go along with it to keep your boss happy, then turn around and sue when you leave.

  4. If an employer withholds a 服務證明書, of course it can cause problems for you, but if you fight back (and why not when you’ve already left the company?) and have proof that you worked when you say you worked and left when you say you left, the company will be found to have violated LSA Art. 19.

  5. Defamation is a criminal offense. Of course you need proof if you want to prosecute, but lack of proof doesn’t mean it’s not a crime.

  6. There are various kinds of unpaid leave. If it’s forced on the employee in violation of regulations, it should be subject to Civil Code Art. 487 and therefore also LSA Art. 22.

I’m sure you could list more dirty tricks. I respect your experience.


#25

OK, found the first oopsie: the Labor Standards Act stipulates that the basic workweek may not exceed 40 hours - :roflmao: . However, the law does not apply to physicians. :astonished: Please note doctors in Taiwan work an average of 90 to 100 hours. OMG. :astonished: :astonished:


#26

Nurses don’t seem to have it much better by all accounts. Many doctors and nurses say the whole system is built on their sweat and tears and it’s not bearable in the long term. I went to see a doc in Mackat hospital recently, it was Friday evening, they have three shifts in the hospital. I was number 50. I assumed that that was number 50
From the morning or the afternoon. I arrived and saw it started at no 1 (I think was 6pm start) and the list went to no 75.
I managed to get seen earlier due to valid reasons but my God…nobody can do adaquate
Work under such conditions. How the hell was he supposed to deal with 75 patients in an evening shift?


#27

[quote=“headhonchoII”]Nurses don’t seem to have it much better by all accounts. Many doctors and nurses say the whole system is built on their sweat and tears and it’s not bearable in the long term. I went to see a doc in Mackat hospital recently, it was Friday evening, they have three shifts in the hospital. I was number 50. I assumed that that was number 50
From the morning or the afternoon. I arrived and saw it started at no 1 (I think was 6pm start) and the list went to no 75.
I managed to get seen earlier due to valid reasons but my God…nobody can do adaquate
Work under such conditions. How the hell was he supposed to deal with 75 patients in an evening shift?[/quote]

Exactly. I pay severalK at PCC in Adventist and I get about an hour with the doctor. I think it is worth it but not many people can afford that. Most doctors here do not like to be told that medical care here is so affordable, precisely because it is killing them, literally.

That said, my brother was working the Christmas shift at the clinic, so the family postponed the whole celebration to the 26th, so he and his family could participate. It would be like Taiwanese doctors doing overtime on Lunar New Year.


#28

I’m not sure how you define oopsie. I don’t move in medical circles, and I’m too lazy to look up whether doctors are covered or not. For anyone who is covered, the 40 hour work week officially replaces the 84 hour work fortnight this Friday (Jan 1), still subject to the rescheduling rules in Chapter IV (Art. 30 etc.) and still subject to overtime pay (Art. 24 + Enforcement Rules Art. 20-1).

I wonder if it’s time to split the thread?..


#29

Two genuine "oopsie"s:

  1. It’s 僱傭 not 雇傭.
  2. I neglected to mention LSA Art. 84-1, which does allow more “flexibility” wrt some conditions including working hours and holidays, for the occupations listed here: mol.gov.tw/media/1380984/%E5 … %80%85.pdf (Chinese only). When a contract deviates from the holiday etc. provisions on the basis of Art. 84-1, it needs to be approved by the labor department. (The Judicial Yuan has decided that if the employer doesn’t send the contract to the labor department, and the employee sues, then a court will decide on the contract’s validity, on the basis of whether or not it’s “detrimental to the health and well-being of the workers”.) Buxiban teachers are not on the list.

Now for some goods news, an LY committee has told the MOL it overstepped its jurisdiction when it decreased the number of holidays.
taipeitimes.com/News/taiwan/ … 03642696/1

No response yet on the MOL’s website.


#30

I’m not sure how you define oopsie. I don’t move in medical circles, and I’m too lazy to look up whether doctors are covered or not. For anyone who is covered, the 40 hour work week officially replaces the 84 hour work fortnight this Friday (Jan 1), still subject to the rescheduling rules in Chapter IV (Art. 30 etc.) and still subject to overtime pay (Art. 24 + Enforcement Rules Art. 20-1).

I wonder if it’s time to split the thread?..[/quote]

Quoted from the Foundation of Medical Professionals Alliance in Taiwan. I was writing an article about them and this is one of their main complaints.

My faith in contracts has been tested way too many times…


#31

Update: taipeitimes.com/News/front/a … 2003647056[quote]
As a returned proposal must be revised or withdrawn by the proposing agency within two months, the ministry’s abstention from submitting revisions to the amendment would result in its expiry on June 21 and the restoration of the national holidays that were previously canceled, Kuo said.[/quote]
But…


#32

I read this in Chinese this morning. Taiwan’s Laoban class make me physically sick and the labor office is a fraud. Saying that Taiwan will not be attractive for investment with so many rest days and threatening to leave Taiwan if workers are allowed to have more days off.

Rest results in productivity and creativity. If you want to be competitive, innovate! Dont keep costing down and punishing your employees for your shortsightedness and lack of business skills. The cost down, toy factory business approach has resulted in Taiwan’s continual decline. Why do these idiots (both the labor office and the laoban class) want to double down on this.

Taiwan has a lots of smart people with good educations and ideas, but they are either suffocated and exhausted by the system or move abroad to greener pastures. Unless there is a change, how can there be a future for the island?
udn.com/news/story/9846/1715985- … A%E8%B5%B0


#33

[quote=“yyy”]Update: taipeitimes.com/News/front/a … 2003647056[quote]
As a returned proposal must be revised or withdrawn by the proposing agency within two months, the ministry’s abstention from submitting revisions to the amendment would result in its expiry on June 21 and the restoration of the national holidays that were previously canceled, Kuo said.[/quote]
But…

Nobody will be working a 40 hr week apart from public workers. Everybody knows that. These men are slave drivers and the ministry of labor is corrupt and useless. They should be protecting the workers not badly performing companies!!!


#34

[quote=“OrangeOrganics”]I read this in Chinese this morning. Taiwan’s Laoban class make me physically sick and the labor office is a fraud. Saying that Taiwan will not be attractive for investment with so many rest days and threatening to leave Taiwan if workers are allowed to have more days off.

Rest results in productivity and creativity. If you want to be competitive, innovate! Dont keep costing down and punishing your employees for your shortsightedness and lack of business skills. The cost down, toy factory business approach has resulted in Taiwan’s continual decline. Why do these idiots (both the labor office and the laoban class) want to double down on this.

Taiwan has a lots of smart people with good educations and ideas, but they are either suffocated and exhausted by the system or move abroad to greener pastures. Unless there is a change, how can there be a future for the island?
udn.com/news/story/9846/1715985- … A%E8%B5%B0[/quote]
It is somewhat amusing when they say giving workers more holidays than civil servants would make Taiwan the laughingstock of the world, and that raising the minimum wage by NT $6 would force supermarkets to raise prices… :unamused:

(That’s just the hourly wage being recalculated to keep it in sync with the monthly wage of $20,008, because the monthly wage now works out to slightly more per hour due to the 40 hour work week.)


#35

Yeah those guys earning $20,008 per month are wrecking everything!

Wait, did I miss the point?

Guy


#36

Workers that earn more can spend more. Workers that have more time off can spend more and have more kids. This is just basic economics to a certain degree. Industries change and upgrade all over the world. If Taiwan wants to hitch itself to polluting bottom dollar manufacturing that’s what it gets. If it hitches it’s wagon to something of higher value the wealth can ‘potentially’ be shared around. Time to tell these old business groups to shut it.


#37

Just a reminder: some of us have to work next Saturday June 4th. :cry:


#38

Me. Fuck me.


#39

Update:

No compensation for holidays already missed this year.

MOL’s announcement, in Chinese: mol.gov.tw/announcement/2099/25785/
MOL’s reminder of what the Enforcement Rules are supposed to say (because both their database and the MOJ’s database still show the Dec version), in Chinese: mol.gov.tw/announcement/2101/25811/
MOL’s official proclamation (in the MOL’s database already) quoting the EY on why the amendment was invalid, in Chinese: laws.mol.gov.tw/Chi/NewsContent.asp?msgid=4288

Nothing on the MOL’s English website, as usual… :whistle:


#40

Big protest at the gates. labor unions from all over Taiwan.