Here we go again… Please, please, show us where this is written!
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. ) 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!