So I’ve found out my contract with my school is a Contract of Mandate and not a Contract of Employment. What does this mean are my rights in layman’s terms? I’ve tried to look it up but it’s honestly going over my head.
is it a cram school job? if your job is not different from other schools jobs, my guess is your school wants to avoid your NHI and labor insurance etc. if you are actually employed, but the name of your contract is Contract of Mandate to aboid those things, it is illegal.
you can check if your contract is actually employment, by this directions.
or you can consult to labor department in your city or county.
If they are paying you to perform anything more than a one-off service, then you are their employee. They must provide a legitimate employment contract. Doesn’t matter what they call it. Do the contents of the contract indicate that you are employed? It needs to.
Are you a foreigner without open residency and work rights? If so, did they sponsor your employment visa to live and work in Taiwan? If so, then they definitely employed you. If not, then you are illegally working and living here (in which case it doesn’t matter what you signed or did not sign with them).
I spoke with the MOL here in Kaohsiung and received an email from Taipei asking for my contract as I had just decided to go to the MOL here on the day I got my most recent ARC.
I am a cram school teacher and they pay my NHI, but there is no labor insurance. I work 30 hours a week. Expected to be here from 1:30-9:10 M/W/R/F and 4:30-9:10 on Tuesdays. I just signed a contract for another two years and have already been here for a year.
This is my second cram school job so I’m not entirely unaware of regulations but I like this school. I’m just trying to make sure everyone working here gets the insurance they’re entitled to.
Yup, they sponsor me to live and work here. Work contract and everything has them as my employers. I’m expected to be here as a full time teacher in their terms (30 hours a week and in the school 30 minutes before the first class of the day starts).
I have NHI but no labor insurance and that’s why I decided to contact the MOL in Kaohsiung. I had a previous job in a cram school which provided both NHI and Labor Insurance but found it odd this school didn’t.
I do enjoy my job and the school itself isn’t bad. I just don’t enjoy that they are skimming the laws by not providing only foreigners labor insurance. All the Taiwanese workers have it, but the foreigners don’t. It has caused many female workers with APRC to leave because they wanted maternity benefits but it wasn’t an option here.
Ok. It seems they are doing everything by the books. I don’t think labor insurance is mandatory for employees.
You already contacted them, so I guess you will get some reliable information from them.
If the cram school is registered as a company and has more than 5 employees, labor insurance is mandatory.
If the cram school is established as an insured unit for some teachers’ voluntary enrollment, all the full-time teachers should be enrolled.
Okay, here’s a brief introduction to the topic:
Tl/dr: This area of law just isn’t that reliable in Taiwan, at least not since the Nanshan Insurance fiasco.
The first argument (he taught more than one class ergo he’s an employee) would easily be rejected, though it might carry some weight the other way around (he only taught one class ergo he’s not an employee). The other arguments are sound, and I would say they should be enough, but… this is Taiwan.
Unless something has changed in the last few years, this is almost but not quite true. It doesn’t make a huge amount of sense, but the logic goes like this: a buxiban can be established by a natural person or a legal person (usually a company), but even if it’s established by a legal person, the buxiban itself is a separate business entity with its own (de facto) legal personality – technically not a person, but still capable of being a party in its own right – so when you contract with or sue the buxiban, you’re not contracting with or suing the company.
What this means for labor insurance is that the buxiban is not subject to the five employees rule, because that rule is only for companies and “行號” if I remember the wording correctly – “firms”. The choice of wording was probably intended to be broad enough to capture most types of business entities, but someone in the government decided to issue an official interpretation that said it doesn’t include buxibans.
However, if the buxiban has already established a labor insurance unit, then insurance is mandatory for all employees, full- and part-time. Even if no-one is registered at the moment because they only established it for one person’s sake and that person has left, the mandatory nature of the insurance persists. (Incidentally, failure to register an employee for labor insurance has been found to be sufficient to trigger LSA Art. 14 in case you want to quit with no penalty, though this being Taiwan, precedents are usually non-binding.)
Like I said, this may have changed recently. If things are getting serious, talk to a lawyer… and then get a second lawyer’s opinion.
what I said is if the cram school is registered as a company, the school is subject to the five employees rule, and it seems there exist some cram schools registered as companies. at least, according to the former director of the Taipei City Labor Department, it is so. ah, and it is 5 or more, not more than 5.
or, do you mean cram schools are not companies even if they are registered as campanies?
there I added full time at a wrong place. you right.
So because I happened to just file a claim with the MOL with no additional information as proof, I got an email from Taipei explaining the mandate vs. employee clause.
I sent back scanned versions of all my of my contracts with the company seal and signature of the owner. Along with my last three banking statements that show the reimbursement for ARC and health check fees.
Hopefully this along with the contract stating I have set working hours and such will be enough. Even if not then I can’t say I didn’t try.
I meant if he taught beyond one-off contracts (not necessarily one time), then he is an employee.
I get that you can rehire the same contractor multiple times and they still wouldn’t be your employee, but each time is still considered a one-off contract.
Oh I teach Monday to Friday with two sets of contracts in my possession now. It’s a normal buxiban contract except this one says mandate vs. employee
Ah yes, that can also happen, even though the buxiban regulations in any city/county most likely prohibit de facto buxibans that aren’t registered as buxibans. When it happens, presumably the owner thinks registering merely as a company is a good idea because it means not needing to follow the rules for buxibans, but that only works as long as the local education department doesn’t notice (or doesn’t enforce the regulations), and it would make it harder to evade responsibility when it comes to labor insurance.
I’m not sure I understand what you mean here. If work occurs on multiple dates and can easily be conceptualized as separate pieces of work (e.g. different classes with different students), the contract can still be a single contract, whether or not it’s an employment contract (or a labor contract, depending on what’s at stake).
It sounds like you’re asking the Ministry (at the central government level) for its opinion, not making a claim in the adversarial sense. If the case ends up in court, such an opinion may be persuasive, but the judge can choose to ignore it. Hopefully the buxiban would take the opinion seriously and say okay we’ll stop pretending you’re just a 受任人, but some people are awfully stubborn.
What the (local) labor department is mainly useful for in this type of situation is providing mediation at no cost to the parties. If the mediation fails, but you still think the case is worth pursuing, you can go to court. (You can go to court anyway, but if you do that without having mediation first, you need to pay for mediation at court before the trial happens.)
You can also ask the department’s enforcement office to investigate and potentially fine the buxiban for specific violations of labor law. Unfortunately, just having a shoddy contract isn’t something they would be fined for.
I thought there were laws in place that prohibit you from being hired as a contractor vs. an employee if you are long term.
As a contractor, you are supposed to be your own boss, decide what you want to charge, and decide which days you want to work, and work on a limited time basis.
As an employee, you work for someone else on their terms, on a permanent basis.
Or maybe those are just suggestions and not laws. I don’t remember.
They asked if I wanted to file a formal complaint so they would investigate the school and I had to complete a bunch of paperwork and check that I wanted to remain anonymous to the school. I had to have help because my written Chinese is foolish.
But they said they have to go through Taipei for formal complaints.
If they did pass a law like that recently, that’s progress. Last time I looked into it though, discernment of the type of contract was still subject to an extreme degree of 差不多.
Okay, so the local department will do an inspection. You can still apply for mediation if you want (and so can the buxiban).
I’m just waiting to hear back from Taipei once they go through my contracts and such. Something interesting did happen, they took our cards that we use to clock in and out with today saying we no longer have to do that.