English Translation of New Labor Law (1/13/2004)

Long post, guys, but here is a rough translation of what’s going on. The parts I cut out deal with “laborers” (i.e., caretakers and factory workers, for the most part)…

Enjoy!

Guidelines for Employment of Foreign Nationals (Promulgated 13 January 2004)

Chapter I General Principles

Article 1 These regulations are established in accord with the Employment Law (hereinafter called “The Law”), Article 48, Item 2.

Article 2 Terms used in these Regulations are as follow: 1. Class 1 Foreigners: refers to those foreigners employed under Article 46, Clause 1, Items 1 through 6. 2. Class 2 Foreigners: refers to those foreigners employed under Article 46, Clause 1, Items 8 through 11. 3. Class 3 Foreigners: refers to those foreigners employed under Article 51, Type 1 or Type 2. 4. Class 4 Foreigners: refers to those foreigners employed under Article 51, Type 3.

Article 3 The Central Authorities shall consider the condition of the employment market and the nation’s economic development and assess the supply and demand situation with regard to labor in setting quotas and ratios for employment of Class 1 foreigners and for handling domestic bids for work.

Article 4 All international written agreements which are not conceived primarily for the entry into the ROC for the purpose of work shall clearly state the scope of work, number of workers, length of stay and other conditions. Foreigners who are issued entry visas based on these agreements shall be viewed as holding work permits. The length of stay in such cases is limited to 180 days, and an application for extension of visa validity must be made before this period has elapsed, for a maximum extension of 180 days.

Article 5 Foreigners doing the type of work detailed in Article 51, type 3 who enter the ROC on a visa of less than 14 days’ length shall be viewed as holding a work permit. Based on the requirements for resolving emergency problems for the public good, foreign legal entitles or foreign nationals who are in the ROC working at work detailed in Article 46, item 1 type 1 who stay in the ROC for less than 14 days shall likewise be viewed as holding a work permit.

Article 6 Except as set forth in these Regulations or other related regulations, employers of foreign nationals employed to work within the ROC must apply to the Central Authority for issuance of a permit. The Central Authority shall consider the opinion of the Central Authority’s Review before issuing such permission.

Section II: Application for Employment of Type 1 Foreigners

Article 7 Employers making application to employ Type 1 foreigners must prepare the following documentation: 1. Application form. 2. Copies of the ID of the company’s responsible person [fuze ren], company registration certificate, proof of business registration, and any special permits. However, companies not required to attach copies of special permits are not included in these limitations. [Translator’s note: Huh??] 3. Copy of the employment contract. 4. List of names, passport copies and copies of the diplomas of foreigners to be employed. 5. Receipt for handling fee. 6. Other documentation as required by the Central Authority. Employers which are civil organizations shall be required to attached items 1 and 3 through 6 above, as well as copies of the ID of the organization’s responsible person [fuze ren] and the certificate of the organization’s registration. In the case of documents issued outside the ROC the Central Authority may require certification by an ROC mission in the country of issuance.

Article 8 Sixty days prior to the expiration of the period of validity for work permits, the employer must apply for an extension in the case of Type 1 foreigners requiring same, and submit, within that time frame, the documents stipulated in items 1 and 3 through 5 to the Central Authority for their review.

Article 9 Foreigners under Clause 5 who will stay in the ROC more than 15 days but less than 90 days must apply for a work permit within 15 days of entry to the ROC.

Article 10 The Central Authority shall inform the Ministry of Foreign Affairs when issuing or extending a work permit for a Type 1 foreigner.

Article 11 In the following instances, if employers make application to employ a Type 1 foreigner the Central Authority shall not issue or extend a work permit: 1. If false information is provided. 2. If the foreign national cannot pass the health examination as stipulated in the Ministry of Health’s regulations for employment of foreign nationals. 3. If the application does not meet the requirements for applying, and is not updated within the specified period. 4. If application is in violation of the standards set in
Article 46, item 2 of this Law.

Section III: Application for Employment of Type 2 Foreigners

Article 12 Employers making application to employ Type 2 foreigners must first attempt to obtain workers by providing reasonable working conditions and applying to the local public employment service organization. They must further publish a notice for three days in a nationally circulated publication and must run the employment ad for 14 days in said publication. Employers seeking to employ caregivers must advertise for seven days. The foregoing employment advertisements must include the type of work, number of workers sought, skills or qualifications, employer’s name, salary, working hours, location of work, contract duration, benefits and the public employment office, address and phone where individuals may apply. Employers seeking workers under item 1 must advise the union or workers’ organization in their industry and post announcements in a place where such workers would see them.

[more about factory workers, etc…deleted]

Section IV: Application for Employment of Type 3 Foreigners

Article 30 Foreign exchange students under Article 51, Clause 1 of this Law must fulfill the conditions of a foreign student as laid out in the regulations regarding foreign students in the ROC.

Article 31 Foreign students in Article 30 above who have taken two semesters of classes in a department or institute, or who have completed one year or more of language training with good marks and whose schools acknowledge one of the following conditions, may engage in work related to their course of study or language: 1. Students whose financial situation does not allow them to continue their studies, and who can provide concrete evidence to this end. 2. The academic or research organizations at the school the student is studying at require the assistance of foreign exchange students in their work. 3. The student’s course of study require practicum outside the school. Foreign exchange students with special language skills may, with the approval of the Ministry of Education, work part-time as foreign language teachers at university or college language centers or foreign educational institutions in the ROC and are not subject to the foregoing limitations.

Article 32 Overseas Chinese under Article 51, Clause 2 must fulfill the conditions for student status under the regulations for overseas Chinese to return to the ROC for study and guidance. Overseas Chinese from China under Article 51, Clause 2 must fulfill the conditions set forth for status as an Overseas Chinese student from Hong Kong or Macau coming to Taiwan for education.

Article 33 Type 3 foreigners applying for a work permit must prepare the following documentation: 1. Application form. 2. Copy of student ID. 3. Copy of proof of enrollment at an educational institution or language school. 4. Proof of grades from the most recent semester, or grades for a full year in the case of language study. However, foreign students who fulfill the requirements of Article 31, clause 2 are exempt from presenting such documentation. 5. Receipt for handling fee. 6. Other documentation as required by the Central Authority. In addition to having the foregoing documentation checked, foreign students must also attach the related proofs and certificate of special language ability as required in Article 31, clause 1.

Article 34 Type 3 foreigners’ work permits shall have a period of validity of six months. Foreigners working on this type of work permit shall not work more than 16 hours per week with the exception of school vacations.

Article 35 In the following cases, Type 3 foreigners applying work permits shall not have them granted by the Central Authority: 1. If applicant has provided false information. 2. Application does not fulfill requirements, and is not updated in a timely manner.

Section V: Application for Employment of Type 4 Foreigners

Article 36 Employers making application to employ Type 4 foreigners must prepare the following documentation: 1. Application form. 2. Copy of applicant’s ID or the ID of the responsible person of the company, company registration, business registration, factory registration, and special permits or licenses. However, companies not required to attach copies of factory registration or special permits are not included in these limitations. [Translator’s note: Huh??] 3. Copies of employment contract or labor contract. 4. Passport copies for foreign nationals to be employed. 5. Copies of the ARC or PARC of the foreign nationals to be employed. 6. Receipt for handling fee. 7. Other documentation as required by the Central Authority. Employers which are civil organizations shall be required to attached items 1 and 3 through 7 above, as well as copies of the ID of the organization’s responsible person [fuze ren] and the certificate of the organization’s registration.

Article 37 Sixty days prior to the expiration of the period of validity for work permits, the employer must apply for an extension in the case of Type 4 foreigners requiring same, and submit, within that time frame, the documents stipulated in items 1 and 3 through 7 to the Central Authority for their review.

Article 38 Type 4 foreigners who are performing work under Article 51, item 2 of this Law who apply to the Central Authority for a work permit should attach documentation as required in Article 36, clause 1 and clauses 4-7.

Article 39 In the case of employers applying to employ Type 4 foreigners, or foreign nationals applying under Article 51, item 2 for work permits, if one of the following conditions is present, the Central Authority shall not issue or extend a work permit: 1. If false information is provided. 2. Application does not fulfill requirements, and is not updated in a timely manner.

[the rest is mostly about dormitory management and contracts…one interesting point is that it stipulates a contract in Chinese WITH A TRANSLATION into the worker’s native language… :shock: ]

Thank you for doing this translation.

I asked this on another thread and I got no reply. Maybe you can help. I have an open work permit, can I be prohibited or arrested for working in a kindergarten?

I don’t think anybody knows. The CLA said that a foreigner without an MOE work permit but with an open work permit would not be deported even if she is working in violation of MOE rules. Now all work permits are processed through the CLA and the MOE has banned foreigners from teaching in kindergartens. The ban should not extend to people with open work permits, but you may have trouble explaining that to teh local police and the kindie owner.

That said, I doubt you would be arrested or deported. The kindie might be pressured/fined and decide to let you go though.

I am not a lawyer and this is not legal advice.

I realize that this is the word that is spreading, but my take on all the recent activity doesn’t support this.

It seems to me that the recent crackdown isn’t aimed at all at foreigners within kindergartens. It is aimed at kindergartens running English immersion and whole day programs. Provided that your school is legal, you are legal, and the kindergarten isn’t flaunting it’s non-compliance with this regulation about English classes, I don’t see that you have anything to worry about. Even if you are working within an English immersion program and your school is inspected, you the teacher don’t seem to be the target of the governments concerns. It is the schools that they seem to be trying to bring into compliance.

Have I gotten it all wrong here? Or am I on the right train of thought?

Brian:

I agree with what you are saying–the enforcement focus so far has been on the schools, not on teachers.

The problem was: how to answer EOD’s question.

The legal analysis: If the police/education bureau find him teaching in a kindergarten, they are going to tell him and the kindergarten that he is teaching illegally. EOD and the kindergarten will protest that he has an open work permit. The police will say they don’t know about any ‘open work permit’ and will ask the MOE. The MOE will tell them that foreigners can’t teach in kindergartens because the MOE does not permit foreigners to teach in kindergartens, and he will be effectively ‘illegal’ in the sense that he and the school could be fined and the police might decide to deport him.

The practical analysis: the scenario I just outlined is unlikely to end with EOD being deported. He will protest to the CLA and the CLA will tell the police that although they can’t tell the MOE who can teach in the schools, he should not be deported because he was not in fact in violation of the Labor Services Law. BUT the kindergarten could well be fined and decide that the expense of keeping EOD is not worth it.

Looking at EOD’s question again, I think the answer is no, you will not be ‘arrested or prohibited’. But you should be aware that you are working illegally in the sense that MOE deems you to be working illegally, and that one practical consequence is that your employer may find it to expensive to keep you.

Should EOD worry? Not really. These crackdowns come every few years and then blow over. Just keep your paperwork in order so they don’t make an example of you.

O.W.P, correct me if I am wrong, is no longer required for those with a JFRV. Those needing a OWP can fall under different categories, incl. those who have lived here for long enough to obtain one.

So, those with a JFRV don’t need an OWP, but would the local cops buy into that? This would be another problem altogether. In Taichung county the Foreign Affairs Police will tell you that if you have a JFRV not to waste time getting an OWP because you don’t need it. Personally, I don’t really want to put it to the test.

I’m curious as to where you get your information about JFRV holders not requiring a work permit of any kind. Is it only the Taichung FAP? I have not seen this on any government website or the like. I have seen that JFRV holders can apply for OWP, though. Just curious.

I assume the lack of response means that JFRV holders still require a work permit, OWP or otherwise. It is misleading to all said visa holders and it can be dangerous with regards to providing for our families, when people say things that lack any kind of concrete evidence. I still ask if anybody has anything to support this claim please share! :expressionless:

try searching on here impleased? you should find a lot.

[quote]I assume the lack of response means that JFRV holders still require a work permit, OWP or otherwise. It is misleading to all said visa holders and it can be dangerous with regards to providing for our families, when people say things that lack any kind of concrete evidence. I still ask if anybody has anything to support this claim please share!
[/quote]Geez mate ease back there. You have assumed wrong. Search the legal section, if you can’t find it you’re not looking hard enough. Ah, I’ll help, here http://forumosa.com/3/viewtopic.php?t=8830

Well I’ll be dipped in honey and fed to the bears. If Richard says it’s right then, hey, it must be. All apologies. Why is it still spoken about with question marks? I figured it was all conjecture. Thanks for directing me to the appropriate thread.

I think the question marks come from the lack of knowledge on the part of those who implement the law. The law might be on the books, but the question is whether or not the lower levels will respect that fact. Or even know about it. Or whether some other administrative organization will decide that they have the right to circumvent/rescind/change the law. Actually the possibilities are still endless… :shock:

In Taiwan we should never assume anything and check with the CLA for every individual case of a JFRV holder seeking employment. Being proactive is the best way to protect ourselves.

Thanks for the translation, by the way.

You’re welcome.

But – don’t you find that sometimes being silent is the best way to protect yourself? i.e., shades of what we used to say about an attorney boss I once had: “What he doesn’t know won’t hurt him, otherwise he’d be in constant pain.”

The CLA isn’t the problem. They are helpful and they know the law (in my experience thus far, at least). It’s the MOE and the buxiban owners from down the street and the [extend list at your whim]. Why is it that you can hardly get a bureaucrat to come out and make a decision in normal circumstances, but now they’re all willing to make regulations that supposedly override legislation?