Breaking contract with STIFF penalty

Most of that is due to the ARC numbers being different to ID numbers and that is being sorted soon. I doubt English teachers running away from shitty cram schools has much to do with damaging our image , however pedophiles, drunk drivers and murderers fleeing the country might affect our image to some locals but nah not this small case about a shitty cram school.

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What’s crazier: that a foreigner who’s asked to work illegally has the right to quit, or that an employer asks a foreigner to work illegally in the first place?


Long explanation ahead. Scroll down for the TL/DR.


@lateforthesky I’m making a few assumptions here:

  1. Your employer is a buxiban.
  2. The attached kindergarten is a separate business entity. (It absolutely does not matter – for the purpose of work permits – whether or not the buxiban and the kindergarten are owned by the same person or company.)
  3. The buxiban – only the buxiban – has obtained a normal work permit for you, and you do not have a work permit exemption (i.e. you are not a permanent resident etc.).
  4. You were asked to work in the kindergarten as a condition of employment.

If all of the above is true, and you can prove #4, then all you need to do to perform an Art. 14 termination (under the Labor Standards Act) is to give the employer a notice like this:

因雇主要求勞工於其他教育事業單位(即幼兒園)工作而要求勞工違反就業服務法第43條規定,勞工依勞動基準法第14條第1項第6款規定終止勞動契約。

As the employer demands that the worker work at another educational business entity (i.e. a kindergarten) and so demands that the worker violate the provisions of the Employment Service Act Art. 43, the worker terminates the labor contract in accordance with the provisions of the Labor Standards Act Art. 14 Par. 1 Subpar. 6.


If you can’t prove #4, you can probably still find a way out.

How was the sick leave pay calculated? (Was there any?)
https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=N0030006

If you’re stiffed on sick leave pay, it’s a violation of LSA Art. 43 (Regulations of Leave-Taking of Workers Art. 4 Par. 3) and LSA Art. 22 Par. 2.

The advertised salary was 55K, based on 20-25 hours a week. Actual hours have been 14-18, closer to 14 during the summer. A number of those hours come from one-on-one students through the school who constantly cancel last minute because they have a test, are on a family picnic, eating noodles, etc.

Mm-hm. That sounds like a violation of Civil Code Art. 487 and LSA Art. 22 Par. 2. If you show up for work, but your boss tells you to go home, you’re still entitled to be paid as usual, assuming you don’t have an unambiguous opportunity to earn at least the same amount doing some other work during that period. (If you’re given “advance” notice but not very far in advance, the law unfortunately is not clear, but you can certainly argue that you should be paid.)

Have any holidays fallen on regular work days? If you received neither holiday pay (regular pay for taking the day off, double pay for working) nor supplementary holidays (on days when you would otherwise work), it’s a violation of LSA Art. 39. This one is annoying, because they used to have a list of all the relevant holidays in the Enforcement Rules of the LSA, but a few years ago there was a big kerfuffle about it, and they made several confusing revisions. Check with an expert.

A very small violation of Art. 22 Par. 2 isn’t enough for an Art. 14 termination (according to a precedent somewhere), but the more the violations add up, the stronger a case you have.

As for the true amount of your salary (same thing as “wage” in Taiwanese law), it includes your apartment rent, utilities, scooter rent, meal allowance if applicable, and so on. For a precise definition, see LSA Art. 2 Subpar. 3, and if that’s confusing, consult an expert. If you pay no nominal rent, the theoretical value of the accommodation still counts as part of your salary, and you should ask the labor department how to calculate it. This matters for purposes of income tax, health/labor insurance, and your average wage (平均工資) if it needs to be calculated…

…which it does, if you’re entitled to severance pay, which you are, if you terminate the contract in accordance with LSA Art. 14.


TL/DR:

That said, if you accepted your employer’s apparent demand to work (illegally) in the kindergarten, both you and the employer have a serious problem. The best course of action is probably to have an expert (such as a lawyer) explain this to the employer and then mutually agree to terminate the contract.

ETA: What people said earlier about the breach penalty is basically correct. To avoid an administrative penalty under the LSA, your employer would need to pay you first and then file a civil suit for the breach penalty, and it seems it wouldn’t be in your employer’s interest to do that.

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That people can’t freely enter into contracts and that mere requests to take on new responsibilities could be considered illegal.

I think you’re missing something here: it’s not the new responsibility that’s illegal. It’s working in/for a separate educational business entity without a separate work permit (or a work permit exemption) that’s illegal. We’ve been over this before in detail, in the threads about kindergarten teaching. The penalty for the foreign worker would be a fine and deportation.

If your employer gives you work that you can’t legally perform, you are under no obligation to perform the work, and you have the right to resign. Simple.

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The fact that this is illegal is stupid. Simple.

I think a pretty fair number of us more or less agree with you on that point :slight_smile: :

As far as I can tell, these are some of the pertinent rules:

https://law.moj.gov.tw/ENG/LawClass/LawSearchContent.aspx?pcode=N0090001&norge=43

https://law.moj.gov.tw/ENG/LawClass/LawSearchContent.aspx?pcode=N0090001&norge=68

Here’s some old news about the rules concerning foreign teachers teaching kindergarten, from October 2003:

http://www.tealit.com/news.htm

The paper reported the new rule as well, in February 2004:

http://www.taipeitimes.com/News/front/archives/2004/02/10/2003098165

Here are some excerpts from this board, some related to kindergarten, and some merely related to doing work other than what was allowed in the work permit:

From 2019

From 2014:

From 2013

From 2012

From 2010

From 2009

From 2008

From 2005

From 2004

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Welcome to Taiwan.

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I’ve said it before, and I’ll say it again: I think the work permit system is stupid, and I think the liberalization by way of the gold card is too little too late. Even so, I recommend abiding by the law, stupid bits and all.

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Thank you for such a detailed response.

  1. Yes
  2. Yes
  3. Yes
  4. Kind of. All of my regular hours are at the buxiban. However, one of my classes at the buxiban was cancelled over the summer while the students were on vacation. To keep me above 14 hours, they filled in my schedule with a couple kindergarten and anchin classes held at the kindergarten. Unfortunately I did accept these hours. Our contract does stipulate that we must attend important school functions held at the kindergarten (sports day, graduation, holiday party, parent’s day, etc) without additional pay (they actually have paid us for these). They’ve asked us to do a demonstration at parent’s day this Saturday, written into our monthly schedule.

We don’t have labor insurance. Does this affect our entitlement to sick leave pay? Our contract explicitly states sick leave is unpaid. Do I understand correctly that the LSA trumps our contract in this regard?

Many of these notification occur a few hours before the scheduled class but while we’re already at school. Some occur at the start of the scheduled class or 5, 10 minutes into the class period when kids don’t show up.

We do receive holiday pay for classes held prior to 6pm. Not Labor Day, though. We worked a regular schedule on Labor Day 2019 for a regular wage.

Regarding the KMT connections, soon after we were hired he invited us to a dinner he hosted for people involved in the kindergarten, a number of whom where local politicians and, to my knowledge, almost all of whom were party members.

We did confirm with our school that they intend to enforce the penalty. When I reminded my manager about the legality of withholding the penalty from our wages, she gave me a short spiel about having the contract in place because foreign workers are different than Taiwanese workers so they need to have different rules. I interpret this to mean they’re not convinced we’re subject to the LSA. We’ll visit the local Foreign Employment Counseling Service/ Tax Office tomorrow and have a longer conversation with our boss early next week.

if the Buxiban employs 5 or more people, labor insurance is mandatory.

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Just to clarify, attempting to enforce the penalty for breaking your contract and taking the penalty out of your pay before giving it to you are two very different things. The employer is well within his/her rights to sue you to enforce the penalty. Whether or not the penalty will hold up in court would be the issue. Taking the penalty out of your final paycheck is illegal, whether you are a foreigner or citizen. Articles 2 and 26 of the LSA makes this pretty clear:

Article 2

The terms used in the Act shall be defined as follows:

  1. Worker means a person who is hired by an employer to work for wages.

Article 26

An employer shall not make advance deduction of wages as penalty for breach of contract or as indemnity

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The wording on the labor insurance website said both that labor insurance is compulsory for businesses with “more than 5 workers” and not for business with “less than 5 workers”. My buxiban employs 5 people, so I’'m uncertain which side of the line we fall on. Though, the Taiwanese staff are salaried and work both at the kindergarten and the buxiban. I’m not sure how their employment is registered.

I also read on other threads the labor insurance administration doesn’t consider buxibans companies so labor insurance isn’t mandatory unless the buxiban already has labor insurance for some employees.

I am clear on this (they can sue me but they must give me my final paycheck in full). My employer, not so much.

The flip side of that is, to get the administrative penalty enforced against the buxiban, if the local labor department doesn’t happen to inspect the buxiban proactively, someone needs to make a complaint.

And the flip-flip side is, of course, the kindergarten situation is illegal for both parties, so how far either party really wants to go is an interesting question. :yin_yang:

Yep. This alien says your employer violated the ESA. :no_no:

:doh:

And even if your only work at the kindergarten had been the special events, it would still probably be deemed work and thus in violation of the ESA.

Your mistake is understandable, but strictly speaking you’re not in the clear. That’s not something your employer can hold against you in a civil suit, but the police can hold it against you, if they want to, and if you file a complaint against your employer, who may be suffering from frog-in-well sydnrome and worried about losing face, it’s not inconceivable that your employer would “cut off its nose to spite its face”, as they say. :crazy_face:


On the other questions:

Tl/dr: buxibans are special business entities that the BLI exempts from the standard 5 or more rule, but if a buxiban already has (or has had) at least one employee with labor insurance in the buxiban’s name, it’s mandatory for all employees, including part-time employees (and foreigners). I guess you can call that the 1 or more rule. :slightly_smiling_face:

Longer explanation:

The 5 or more rule in the Labor Insurance Act is for both companies and firms (行號, see LIA Art. 6 Par. 1 Subpar. 2), but the BLI interprets the former as excluding buxibans established by companies and also interprets the latter as meaning only businesses (商業) established in accordance with the Business Registration Act, even though buxibans are still business entities (事業單位) under the Labor Standards Act and what not. The LY’s notes on the LIA don’t really clarify this.

The 5 or more rule does not conform with the ICESCR according to the EY committee that studied the implementation of the “two Covenants” about 10 years ago, but the MOL considers the law impossible to amend until a “consensus” is reached between government, labor, and industry. :cactus:

To make things extra confusing, the 1 or more rule is not written into the law itself but is instead found in an official interpretation by the BLI; this interpretation has been endorsed by civil court judgements, and to my knowledge there’s nothing to negate it.

Anyone claiming foreigners aren’t subject to laobao just like Taiwanese are is talking utter :poop:. See LIA Art. 6 Par. 3.


Correct: your employer is still bound by the LSA, even if there is no laobao, so the “no sick leave pay” clause is void. Also, if your employer is obligated to register you for laobao (see above) but doesn’t, and this results in you failing to receive a benefit to which you should be entitled under the LIA, you are entitled to compensation of exactly the missing amount of the benefit under Civil Code Art. 184. Unfortunately, the labor department and BLI have no enforcement power for this, so you would need to file a civil suit to have the obligation enforced, and in this case it would probably be a very small amount (just the part of sick leave that isn’t payable under the LSA). Even so, if your employer was obligated to register you but didn’t, or did register you but didn’t pay the full premiums owing (didn’t pay at all or didn’t correctly report your salary), the BLI can fine the employer four times the missing amount of the premiums (and it would be ten times the missing amount if you were injured on the job).

Yep, at least some violations there.

As I said, the new rules for holidays are confusing, but the way I remember it, Labor Day (May 1st) is the one extra holiday that “workers” are still entitled to even though public servants are not, so unless a proper rescheduling arrangement was made, you should be entitled to double pay for that day.

A holiday lasts 24 hours (with special rules for night shift workers), so before or after 6pm is neither here nor there.


As always, nothing you read here should be taken as a replacement for proper legal advice.

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With the caveat that you’re not a replacement for proper legal counsel, you’re still a wonderful resource. Thank you for all the effort you’ve put into your advice.

We’re consulting with the labor department, compiling a list of infractions, relevant statutes, and their pay implications (last minute cancellations, sick leave, holiday pay) as well as the misrepresentation in their former and a current job postings (NT$20k discrepancy in pay, ‘kitchen’, labor insurance incl.), our concerns about the legality of the kindergarten work, and that a minimum service period agreement penalty 1.5x our monthly salary may not be considered ‘reasonable’.

We hope when we speak to our employer on Monday we can agree to call it a wash leaving us with our freedom and money and them without the threat of complaints. :crossed_fingers:

We’ve been asked to teach a paid demo tomorrow at the kindergarten’s Parent’s Day to promote the classes at the buxiban. When we brought up our concerns we were told they were just holding the demo in the kindergarten because the venue was larger than our shitty, cramped buxiban. (The demo is part of a schedule of events in the same room that include introductions to the kindergarten teachers, a speech, class demos for the kindergarten, and a tour). Does this sound like it’s in the grey zone of kosher or also illegal? My partner recorded this conversation just in case (what are the laws on that?).

Do you know where I can find relevant statutes for this:

and this:

Again, many thanks!

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There are two potential issues (hard to say for sure without knowing more facts):

  1. The kindergarten and buxiban are registered as separate entities (I would assume they are), and

  2. Who you are doing the demo with (e.g., kindy students, buxiban students, potential buxiban students who are kindy age, etc.).

If the kindy and buxiban are registered separately, and your work permit is tied to the buxiban, then any work at the kindy is illegal. You are only legally allowed to work at the premises to which your ARC is sponsored by. I would assume that the kindy and buxiban are registered separately, and that your ARC is tied to the buxiban. Obviously I can’t say for sure.

Setting the above aside and strictly looking at the demo itself, if you were to do it with buxiban age students, then it is legal (again, setting aside the above-mentioned issue). If you are doing it with students that are either enrolled at the kindergarten or kindergarten age, then it is illegal.

unless there is a local regulation prohibiting to teach kinder age kids, age doesn’t matter. If you do it in the buxiban, it is legal. If you do it in the separately registered kinder, it is illegal. Iiuc.

Correct

If this is true, would it then also be illegal to take buxiban kids on a field trip, have a class at McDonalds, etc since these are also not on buxiban premises? Are buxiban’s allowed to hold events off campus? Even if we only teach buxiban students and are paid by the buxiban, holding the demo at the kindergarten is still illegal? (These are questions I have, not questions I expect you to answer).

I spoke with the tax office today to see how my employer has been reporting our income. Since the school has not needed to file their 2019 tax information yet, the office doesn’t have an electronic record of our hours/ pay. We’re to bring the records from the school with us when we return 2 weeks before departure.

In other news, for those following this saga, my manager told me she declined to hire a very qualified candidate I sent her way because he tried to bargain for a bonus…

The law does not directly address this scenario. As such, it would need to be argued on a case by case basis. I would assume that if you took registered students on a field trip that started and ended at the cram school you were registered at, then this would fine under the law. At the same time, since it isn’t directly addressed in the law, it’s hard to say for sure.

I hadn’t considered what time of year it is. Your employer is supposed to give you physical copies of your tax information in this case so that you can take it to the tax office. It’s a little tricky in your case. The employer is obligated to do so, but in reality, they may try to delay giving you the papers until after you leave the country. I’m not sure, but I think you would need to either give someone in Taiwan your proxy to file taxes for you, or return to Taiwan later on to file your taxes during tax season. The tax office might be able to help put pressure on your employer, but I don’t know how much weight that pressure would actually exude.

This is not exactly surprising based on the facts you’ve mentioned thus far.

Based on everything you’ve said and your employers general disregard for the law, personally, I would definitely refuse to work the open house thing at the kindy. All your employer would be able to do is fire you, but that would sort of solve all of your problems.

Fun update for all:

This is what we’ve done, after some back and forth this afternoon, and looking into the issue more. Our boss says he’s printed/ maybe given schedules to parents that include our demo and seems not happy. He’s coming by to talk to us shortly. At 9pm. Reason not to live at your school #85.

So, how was the discussion with the boss?