Employer Breaking contract. Advice please

Legal Legal - Work
1

Short story:

Two foreigners work for a large Taiwanese publishing company as in-house editors and trainers.

The company wants to release us from our year contracts early (6 months and 8 months respectively) due to a recent decision to phaze out our department.

We’ve each worked here for three + years, full-time.

They are offering to keep us legally able to work in Taiwan through the end of our contract, but to pay us no monthly salary. In other words, we can work elsewhere but retain our ARC through the publishing company.

We have to sign forms to release them from the terms of our original contract. They phrased this as: a “new” contract to keep us legal (as though it were a big favour).

There will be no severance pay.

We have one month’s notice.

Longer story (with questions):

If I’m not mistaken, in order to have an ARC you have to meet minimum pay and hour requirements. I’ve read 48,000NT/month and/or 14hrs./week. They aren’t offering us hours or money, so how could they offer to keep our ARC’s legal?

This “new” contract smells like a way for them to protect themselves from breach of contract legal action.

In other threads, I’ve read that employers breaking contracts have to offer at least a month per year worked. So, at a minimum , they owe us each 3 months salary, no?

Does this fall under “labour relations” in Taiwan law? I ask because when I looked at the AIT list of lawyers, this category is often listed, whereas nothing else related to employment appears. Some other offices list “contracts” as a category.

Other anecdotal accounts from friends say we could sue for and get the remainder of the contract money we’re each owed (six and eight months salary, respectively).

Neither of us have any experience with legal issues really, and fear initiating legal action could result in somehow not even getting the last paycheque we are each owed.

Any advice or help you could offer would be much appreciated.

Thank you.

2

[quote=“legtostandon?”]Short story:

Two foreigners work for a large Taiwanese publishing company as in-house editors and trainers.

The company wants to release us from our year contracts early (6 months and 8 months respectively) due to a recent decision to phaze out our department.

We’ve each worked here for three + years, full-time.

They are offering to keep us legally able to work in Taiwan through the end of our contract, but to pay us no monthly salary. In other words, we can work elsewhere but retain our ARC through the publishing company.

We have to sign forms to release them from the terms of our original contract. They phrased this as: a “new” contract to keep us legal (as though it were a big favour).

There will be no severance pay.

We have one month’s notice.

Longer story (with questions):

If I’m not mistaken, in order to have an ARC you have to meet minimum pay and hour requirements. I’ve read 48,000NT/month and/or 14hrs./week. They aren’t offering us hours or money, so how could they offer to keep our ARC’s legal?

This “new” contract smells like a way for them to protect themselves from breach of contract legal action.

In other threads, I’ve read that employers breaking contracts have to offer at least a month per year worked. So, at a minimum , they owe us each 3 months salary, no?

Does this fall under “labour relations” in Taiwan law? I ask because when I looked at the AIT list of lawyers, this category is often listed, whereas nothing else related to employment appears. Some other offices list “contracts” as a category.

Other anecdotal accounts from friends say we could sue for and get the remainder of the contract money we’re each owed (six and eight months salary, respectively).

Neither of us have any experience with legal issues really, and fear initiating legal action could result in somehow not even getting the last paycheque we are each owed.

Any advice or help you could offer would be much appreciated.

Thank you.[/quote]

My guess is that according to the law, they are liable for fulfilment of the financial obligations of the contract. However, there is most likely no mechanism to actually force the issue, and it probably wouldn’t be worth the legal costs to have it done. A contract is a contract, it obligates them to employ you for a set period of time, and you to work for them. The only question is whether you can get the law enforced.

From my personal experience, you will not see that last paycheck anyway. I just met with a lawyer over some contractual issues (but I’m the employer), and was basically told that it would cost close to the 250K that we were after, and that the court would probably not find in our favor even though the law was clear (this is #4 where the answer was best translated as “You’re screwed, your an uppity foreigner”)(and that is in the last two years, I try not to remember earlier times, bad for my blood pressure).

The reality is that they can ignore the law if they so choose. You’ll need a lawyer to take it before arbitration, or a Chinese friend who is willing to argue your case. Your best bet is to find out what the law states, and go with arbitration, and then settle for 1/2 of whatever is required (if you get that much). I honestly have heard of VERY few cases of a foreigner coming out on top in court, but I HAVE been screwed personally in arbitration.

3

[quote=“legtostandon?”]Short story:

Two foreigners work for a large Taiwanese publishing company as in-house editors and trainers.

The company wants to release us from our year contracts early (6 months and 8 months respectively) due to a recent decision to phaze out our department.

We’ve each worked here for three + years, full-time.

They are offering to keep us legally able to work in Taiwan through the end of our contract, but to pay us no monthly salary. In other words, we can work elsewhere but retain our ARC through the publishing company.

We have to sign forms to release them from the terms of our original contract. They phrased this as: a “new” contract to keep us legal (as though it were a big favour).

There will be no severance pay.

We have one month’s notice.

Longer story (with questions):

If I’m not mistaken, in order to have an ARC you have to meet minimum pay and hour requirements. I’ve read 48,000NT/month and/or 14hrs./week. They aren’t offering us hours or money, so how could they offer to keep our ARC’s legal?

This “new” contract smells like a way for them to protect themselves from breach of contract legal action.

In other threads, I’ve read that employers breaking contracts have to offer at least a month per year worked. So, at a minimum , they owe us each 3 months salary, no?

Does this fall under “labour relations” in Taiwan law? I ask because when I looked at the AIT list of lawyers, this category is often listed, whereas nothing else related to employment appears. Some other offices list “contracts” as a category.

Other anecdotal accounts from friends say we could sue for and get the remainder of the contract money we’re each owed (six and eight months salary, respectively).

Neither of us have any experience with legal issues really, and fear initiating legal action could result in somehow not even getting the last paycheque we are each owed.

Any advice or help you could offer would be much appreciated.

Thank you.[/quote]

Oh! and DO NOT sign anything further that is in Chinese.

4

To clarify: we’ve signed nothing. Our boss wants us to sign this “new” contract (as yet unseen), but we’ plan on stalling and figuring out what we should do to in the meantime.

5

Stall him. What he’s suggesting is illegal and he probably knows it. He also owes you three months’ severance. You don’t need a lawyer. The CLA will arbitrate. Sign nothing.

6

Sign nothing and go to the CLA. You are owed severance.

7

No. No matter what he says, do NOT sign it. There WILL be hidden things in there. I guarantee it. You need a lawyer, but preferably from an American law firm. The local lawyers down here are useless, but maybe they are better in Taipei. I can’t recall the name of the firm that I retained years ago, Brown and somethingorother.

But, talk to them, find out your best path. I honestly don’t know. I’m already used to dropping my drawers, bending over, and providing my own vaseline :-D…

And. I sign NOTHING in Chinese other than my visa papers. Ever. For any reason.

8

I think you’re right on this. Maybe government and arbitration actually WORK in Taipei, hehe (wouldn’t surprise me).

9

Thanks for the advice. We’re going to go down to the CLA office on Monday.

So, the anecdotal stories about getting the rest of the contract paid out aren’t sounding too promising at the moment.

Still, severance, that would make it bite quite a bit less!

10

If you are in Taipei, and have an local Taiwan associate who will help you with the paperwork, I can advise you on how to file with the local court for the “remainder of salary monies owed to you under the contract.”

In order to do this, I assume that you are planning to be in Taiwan for the next six months or so. If so, then you and your associate can handle the matter yourselves. If not, you would need a lawyer, and they start at NT$60,000 or thereabouts.

11

Just to start you off:
Employment rules - English
buxiban.com/Legislationview. … itmcde=269

[quote]Article 11

An employer may terminate a labor contract with advance notice if one of the following five conditions exists:

  1. Where the employer’s business is suspended or its ownership is transferred to others.
  2. Where there is an operating loss or a business contraction.
  3. Where force majesty necessitates business suspension for more than one month.
    4. Where a reduction in force is resulted from the changing of the nature of his business and the terminated employees cannot be reassigned to other positions.
  4. Where an employee is confirmed to be incompetent for his job duties.[/quote]

He can terminate the contract, but:

[quote]Article 16

Where an employer terminates a labor contract pursuant to provisions of Article 11 or the conditions provisions of Article 13, the terms described below shall govern the prescribed time limit for serving advance notice:

  1. Where a worker has continuously worked for more than three months but less than one year, the notice shall be given 10 days in advance.
  2. Where a worker has continuously worked for more than one year but less than three years, the notice shall be given 20 days in advance.
    3. Where a worker has continuously worked for more than three years, the notice shall be given 30 days in advance.

After receiving the advance notice referred to in the preceding paragraph, a worker may, during hours of work, ask for leave of absence for the purpose of finding a new job. Such leave of absence may not exceed two work days per week. Wages shall be paid during such leave of absence.

Where an employer terminates the contract without serving an advance notice within the time limit prescribed in the first paragraph of this Article, he shall pay the worker wages for the advance notice period.[/quote]

He has to give you one month’s notice (or one month’s salary).

[quote]Article 17

Where an employer terminates a labor contract pursuant to the provisions of the preceding Article, he shall pay separation fee to the worker in accordance to the terms prescribed below:

  1. Separation fee equivalent to one-month’s average wage shall be paid to the worker who has continuously worked in the business entity of the same employer for each full year.
  2. In respect of odd month service periods computed pursuant to the preceding paragraph, or in respect of a service period of less than one year, separation fee shall be computed proportionately. A service period of less than one month shall be computed as one month.[/quote]

He also owes you 3 months severence pay.

Chinese version can be found here:
forum.yam.org.tw/women/backinfo/ … law_01.htm
It’s laid out the same so even if you can’t read Chinese just look for ‘第十一條’ - Article 11 you can guess the rest.

Ask for a copy of the ‘new contract’, say you want to read it through at home. It almost certainly says you are giving up your rights to the above entitlements, and hopefully talks about the deal to let you keep your ARC illegally. Should be something the CLA would be very interested in, if you know what I mean.

P.S. Bushiban.com what’s the point of disabling right-click? It takes 2 seconds to overcome and just annoys people trying to help others!

12

Thanks to everyone offering advice here. :notworthy: You have really, truly helped out.

(edit: And, keep any other advice coming please. We could use all the advice we can get.)

13

[edit] I posted something here that might not be good to post publicly if this becones a legal situation. It was about something sneaky my employer tried to pull.

14

UPDATE:

The CLA will not arbitrate. They are only interested insofar as the validity period of our ARC’s.

They sent us to the foreign labour association which was more helpful. However, it seems we’ll have difficulty getting severance because our company dated all of our yearly contracts 30 days apart, effectively making them year contracts and therefore, not requiring severance pay.

The fight isn’t over though. We’re trying our best to get something.

So far, all agencies have openly laughed at the idea of suing to get the remainder of the contract paid. The CLA guy said it’ll take at least two years and the foreign labour association lady said “no one does that, they all give up”.

I haven’t talked to an actual lawyer though, so again if any of you know and English speaking lawyer that you could reccomend, please advise. And, soon!

Thank you.

15

My understanding of the severance pay issue is that this pertains to full time non fixed term contract workers i.e. local staff who just get a job and work there.

Most foreign staff are under contract for a certain period of time and therefore are not entitled to severance pay.

You may be entitled to compensation if your contract states a penalty for breach by the employer, but other than that I think that you may be better off going the arbitration and negotiation route and seeing how much money, if any, you can get from your employer. I don’t think that there is any more than this that you can do.

16

[quote]My understanding of the severance pay issue is that this pertains to full time non fixed term contract workers i.e. local staff who just get a job and work there.

Most foreign staff are under contract for a certain period of time and therefore are not entitled to severance pay. [/quote]
No, doesn’t matter what kind of contract you have. If you’ve worked for the company for more than a year, you’re entitled to the same severance as everyone else.
I got a whole shitload of severance from a company I worked for for 8 years on a series of yearly contracts. They tried to stiff me, they failed.

17

Sandman,

Did you go through CLA?

All they did for us was inquire about our last day and make photocopies of our ARC, which, in retrospect might hurt us in the long run since we’ll have no leeway time to find work beond the 14 days after the last day policy.

18

I should say…

All they did after 90 minutes of us explaining the situation, inquiring about severance, and asking if they could or would arbitrate, was jump on the ARC issue and send us off to the Foreign Labourer’s Association.

19

When it says 30 days’ notice, does 30 days mean “Oh by the way, we think we’re going to have to cut your hours and your pay” or does it mean something in writing?

20

[quote=“sandman”][quote]My understanding of the severance pay issue is that this pertains to full time non fixed term contract workers i.e. local staff who just get a job and work there.

Most foreign staff are under contract for a certain period of time and therefore are not entitled to severance pay. [/quote]
No, doesn’t matter what kind of contract you have. If you’ve worked for the company for more than a year, you’re entitled to the same severance as everyone else.
I got a whole shitload of severance from a company I worked for for 8 years on a series of yearly contracts. They tried to stiff me, they failed.[/quote]

Acutally, another thing the guy who saw us at CLA said was that most foreigners are not entitled to severance pay because they work on fixed-term contract. He then went on to say that this usually prevents foreign laborers (he specified Thais and Indonesians) from getting compensation in disputed cases.

Reading about other’s eperiences here, particualrly Sandman’s, it seems you can go to an official, governmental agency and depending on who helps you, walk out with vastly different information.

That or there has been a policy change since the time of Sandman’s claim.

Imaniou, I think, and I emphasize think, that notice can be given orally.