Employment Services Act, new Article 51

Legal Legal - Work
1

The amended Employment Services Act (ESA) 修正就業服務法 has been announced. The official Chinese text is at
http://law.moj.gov.tw/Scripts/Query4B.asp?FullDoc=所有條文&Lcode=N0090001

Here’s a rough translation of Article 51. Basically, Article 51 gives foreigners married to Taiwanese and permanent residents (among other classes) the right to work. Note that you still have to apply for a permit to the Council on Labor Affairs, so don’t start selling betel nuts or anything just yet.

就業服務法
Employment Services Act

中華民國九十一年一月二十一日公布
Promulgated 21 January 2002

第五十一條
Article 51

雇主聘僱下列外國人從事工作，得不受第四十六條&#31 532;一項、第三項、第四十七條、第五十二條、第五十 三條第三項、第四項、第五十七條第五款、第七十&#20 108;條第四款及第七十四條規定之限制，並免依第五十 五條規定繳納就業安定費：
Employers who employ the foreign persons listed below are not subject to the restrictions in Articles 46-1, 46-3, 47, 52, 53-3, 53-4, 57-1-5, 72-1-4, and 74 and are exempt from payment of the employment stabilization fee under Article 55:

一、與在中華民國境內設有戶籍之國民結婚，且獲&#20 934;居留者。

  1. Foreign persons [1] who are married to citizens with household registration within the territory of the Republic of China and [2] who have obtained residency.

二、獲准居留之難民。
2. Refugees who have obtained residency.

三、獲准在中華民國境內連續受聘僱從事工作，連&#32 396;居留滿五年，品行端正，且有住所者。
3. Foreign persons who have been engaged in authorized employment continuously and have resided for five years within the territory of the Republic of China, who are of good moral character, and who are domiciled in the Republic of China.

四、經獲准與其在中華民國境內設有戶籍之直系血&#35 242;共同生活者。
4. Foreign persons who have obtained approval to live with their lineal blood relatives with household registration in the territory of the Republic of China.

五、經取得永久居留者。
5. Foreign persons who have obtained permanent residency.

前項第一款、第二款、第四款及第五款之外國人得&#19 981;經雇主申請，逕向中央主管機關申請許可。
The foreign persons listed sub-paragraphs 1, 2, 4, and 5 of the preceding paragraph may, without application by the employer, apply directly to the competent authority for a permit.

外國法人為履行承攬、買賣、技術合作等契約之需&#35 201;，須指派外國人在中華民國境內從事第四十六條第 一項第一款或第二款契約範圍內之工作，於中華民&#22 283;境內未設立分公司或代表人辦事處者，應由訂約之 事業機構或授權之代理人，依第四十八條第二項及&#31 532;三項所發布之命令規定申請許可。
Foreign juristic persons [1] who need to send foreign persons to the Republic of China to engage in work that falls under the scope of the contracts provided for under Article 46-1-1 and 46-1-2 for purposes of contracting, business, or technical cooperation and [2] who have not appointed a representative or established offices in the Republic of China shall apply for a permit through the contracting enterprise or agency or the enterprise’s or agency’s authorized agent in compliance with the orders and regulations issued under Article 48-2 and 48-3.

2

That sounds good, but how does it actually differ from the current situation. Does it mean you just get one work permit that allows you to work wherever and whenever you want or what?

3

Employers who employ the foreign persons listed below are not subject to the restrictions in Articles 46-1, 46-3, 47, 52, 53-3, 53-4, 57-1-5, 72-1-4, and 74 and are exempt from payment of the employment stabilization fee under Article 55:

Where can I find what these restrictions are? So does that mean you don’t need two years work experience anymore?

4

The answer to your question is a cautious yes, IF YOU ARE A MEMBER OF CATEGORIES 1, 2, 4, OR 5. (CATEGORY 3 is still employer-specific.)

Here is a summary of the restrictions that Article 51 lifts for these five categories of foreigners:

Article 46-1 Foreigners can be only hired to certain kinds of work:

  1. professionals/those with technical skills
  2. executives in foreign companies
  3. certain kinds of teachers
  4. Buxiban teachers
  5. coaches and athletes
  6. religious workers, artists, performers
  7. sailors
  8. fishermen
  9. maids
  10. laborers
  11. “special talents”

(I’ll refer to these as Types 1-11 below.)

Article 46-3 Contract is required for Types 1-8. Period of contract equal to period of work permit.

Article 47 Employer must recruit domestically before hiring foreigners for Types 1-8 [this could have interesting repercussions].

Deportation upon failure of health test.

Quotas by nationality permitted for Types 1, 8-11.

Article 52 Types 1-8 must wait 40 days before reentry after expiration of original permit. Limited to six years of work cumulative.

Article 53-3 Type 1-8 employees cannot change to Types 8-11.

Article 53-4 Types 8-11 cannnot change employers or work except under Article 59-1.

Article 57-1-5 Employers are required to have employees undergo health tests if so required by law.

Article 72-1-4 Employers can have their quota of laborers revoked if they fail have employees take health tests.

Article 74 Foreigners must leave Taiwan upon immediately after their work permits expire or are revoked.

5

My wife has gone to the CLA offices today to collect information regarding the new law i.e. the new work permit regulations. Will post the requirements later.

6

I went to see about the new rules and regulations for Work Permits today, Tuesday. The address is:
Employment and Vocational Training Administration
Council of Labor Affairs
No. 83 Yen Ping North Road, Sec. 2
Taipei 103, TAIWAN

The counter is on the first floor. It is a brand new building. The girls at the counter didn’t know much. They said that they would probably know more Jan. 23rd or Jan. 24th. They did mention something about an NT$ 100 application fee for individual applicants.

7

I don’t understand how the situation for long-term resident foreigners changes to our benefit!! If we can have a 6 year stay here in Taiwan and work wherever we can (based on ability/credentials, of course!), but then are obligated to leave the country for at least forty days, then what about our family here? Plus, do the new provisions mean that I still need the old work permit to work in Taiwan, or can I just go get this new work permit and then go to a prospective employer and say “hire me”?

8

The comments of pkelaiditis reflect the common confusion between white collar workers and blue collar workers in Taiwan – blue collar of course referring to manual laborers.

The CLA has done little to try to rectify this misunderstanding over the years. Basically, this confusion arises because wai4 ji2 lao2 gung1 in Chinese is understood to be those foreigners who are brought into Taiwan to work in factories, on construction projects, as maids, or doing any related types of manual labor, and there is the implication that such a person gets both hands and clothes dirty/dusty as a normal part of daily work. Unfortunately, this Chinese term is generally translated into English as “foreign workers,” which carries none of the original Chinese connotations.

In English, it would appear that a foreigner who teaches English, or who works in a newspaper, or who deals in the import/export trade, etc. is a “foreign worker,” but in Taiwan he/she is not.

It is reasonable to ask: “Well then, when speaking English, what is the correct terminology for these people?” Unfortunately, I do not know. As stated above, The CLA has done little to try to rectify this misunderstanding over the years. The CLA has not promulgated the use of any appropriate English terminology to use in such situations. More regrettably, some people are not fully aware of the distinction between manual workers and non manual workers either. Some people assume that if you do typing on a word processor all day, then you are a manual worker. That is not true however – typists are considered white collar (regardless of the color of the clothes they are wearing, or whether those clothes do in fact have a collar.)

Hence, based on the above rather tortuous analysis, I must point out with all respect that the statements of pkelaiditis which imply that foreigners can only have a six year stay in Taiwan and then must leave for forty days, and/or cannot return, etc. are not applicable to white collar foreigners.

In the Legislative Yuan Public Hearing which I organized on June 20, 2000, to negotiate with the CLA, Executive Yuan, NPA, MOI, various local labor groups, and the different legislative caucases about this proposed legislation, we reached the consensus about the meaning of this Article 51 to be to grant all the (categories of) foreigners specified therein an Open Work Permit. This allows a foreigner to work in the ROC area, but it does require that he/she make a one-time registration with the CLA, thus obtaining the appropriate stamps, chops, and signatures, in order to be considered valid.

9

Richard, my wife went to the CLA yesterday and she had a similar experience to yours:

“I went to see about the new rules and regulations for Work Permits today, Tuesday. The address is:
Employment and Vocational Training Administration
Council of Labor Affairs
No. 83 Yen Ping North Road, Sec. 2
Taipei 103, TAIWAN
The counter is on the first floor. It is a brand new building. The girls at the counter didn’t know much. They said that they would probably know more Jan. 23rd or Jan. 24th. They did mention something about an NT$ 500 application fee.”

Today she called again to be told that until a new application form is drafted, we foreigners who are eligible for the new unrestricted work permit i.e the one time registration with the CLA may use the existing work permit application form used traditionally to apply for work permits. But now instead of completing the form as in the past, all we have to do is fill in our particulars and omit the employer section on the old form, thereby registering with the CLA and at the same time obtaining an open work permit.

Does this sound correct?

10

Today I went to CLA with a section 48 form filled in (no employer), household registration, passport and ARC copies.

They gave me a recepit and said the work permit would be mailed to the address on my ARC in 7 working days. No fee.

It might have been handy to have a chop. They took my thumbprint instead.

So it will be interesting to see how a potential employer may react to this new situation. I guess a copy of the latest revised Employment Services Act would be handy to try and convince them.

11

I went to the Council of Labor Affairs with a disk and convinced them to download the WORD files of the new application forms for me.

Hence, at this point, I have the APPLICATION FORM used for individual applications, i.e. categories 1, 2, 4, and 5.

If you need it, I can email a set of forms out to you as an attachment. YOU MUST HAVE CHINESE SYSTEM ON YOUR COMPUTER IN ORDER TO PRINT THESE OUT. Please send me a private email, and specify in which Article 51 category you are applying, such as (1)foreign spouse (with residency permission based on marriage), (2) refugees (with residency permission), (4) blood relatives, (5) permanent residents.

If you don’t specify anything, my default email will be category 1: foreign spouse work permit application form.

12

Can you still apply if you don’t have an ARC?

13

Probably no. Remember that only four categories of foreigners are eligible for Open Work Permits. If you are a foreign spouse or refugee, you will need an ARC to apply. If you are a permanent resident, you will need the corresponding permit for permanent residents.

The two interesting categories are foreigners with lineal blood relatives and foreigners who have worked for five years. Foreigners with lineal blood relatives have to obtain approval to live with those relatives. The language of the law here suggests that “living together”

14

I have some idea of the original intent of the meaning of these clauses covering all these five categories of people. If anyone has specific questions, please send me a private email.

If I don’t know the answer, I will try to find out, and get you the best “interpretation” possible.

15

Although my status is “foreign spouse” right now, I hope to change this soon to “permanent resident.”

If I gain this new work permit, will I have to do everything all over again upon gaining permanent residency?

16

If your “status” changes, even within the Article 51 categories, you should reapply. You will understand more when you see the forms.

17

Richard, a million thanks for the forms. I know from reading the attached comments that you have been working on obtaining the new rights under Article 51 for some time, a number of years in fact.

For other foreigners married to Taiwanese and others affected by the new regulations, I propose the least we can do is ask Richard to dinner and drinks, if he and you are up to it. And–if not members (like me) of the NNFS–we should also send a financial donation.

Once again, thank you Richard. And I will email a copy of my shiny new work permit as soon as I receive it.

18

Richard,

I have an ARC based on my employment at a bushiban. I am however, married to a Taiwanese woman. What is my status with regard to this new law? Can I still apply for the open work permit? Or do I first have to apply for a residency ARC based on marriage?

19

Yes, as a foreigner married to a Taiwanese national, you must first have Joining Family Resident Visa, in order to apply via the Article 51 procedures.

If you need the explanatory materials for applying for a JFRV, please send me a private email.

20

Hi Richard:

Last week (Tuesday) I sent off the forms to the CLA to obtain the new open work permit. I followed the procedure to the letter as outlined in your email. Today, we called to see how things were progressing. We were told by an official at the CLA that they are aware of the new law but as yet they have no procedure governing the issuance of said permit. They also said that March may be the month in which they start issuing said permit. I was under the impression that I would receive a letter from the CLA stating my new work rights. They also said that they had not yet come to an agreement on how long the permit should be issued for; again, I was under the impression that so long as my ARC is valid the work permit would be too. Now that I’ve sent them all the documents and the proccessing fee, what could possibly be the holdup? Do you have any further news on the subject?

Or is there anyone who has successfully completed the mission? Thanks.