Same as the one @airirow posted (the former is MOJ, the latter MOE). But did anyone at the MOE actually say this was relevant to foreigners with open work rights?
These Regulations are prescribed in accordance with the provisions of Article 5, Paragraph 2, of the Act for the Recruitment and Employment of Foreign Professionals.
第 1 條
Note that it’s not the Employment Service Act. However, when we go to the Act for the Recuitment & Employment of Foreign Professionals (which sets different rules for normal, “special”, and “senior” foreign professionals), we find this:
Terms used in this Act are defined as follows:
4. “Professional work” means the following work:
(1) Work as listed in Article 46 Paragraph 1 Subparagraphs 1 to 6 of the Employment Services Act.
(2) Possessing specialized knowledge or skill, and approved by the central competent authority in consultation with the Ministry of Education as a teacher of non-academic classes in a short-term tutorial school registered in accordance with the Supplementary Education Act.
That means the AREFP supplements (or overrides) the ESA as far as “white collar” work is concerned – but that’s for ESA Art. 46 Par. 1, to which foreigners with open work rights are not subject.
An employer hiring a foreign professional to engage in professional work in the State, as referred to in Subparagraph 4 Item 1 of the preceding Article, shall apply for a permit to the Ministry of Labor, submitting the relevant documents therewith, and the application shall be processed in accordance with the provisions of the Employment Services Act. However, an employer of a school teacher as described in Article 46 Paragraph 1 Subparagraph 3 of the Employment Services Act shall apply for a permit to the Ministry of Education, submitting the relevant documents therewith, and shall not be subject to the provisions of Article 48 Paragraph 1 of the Employment Services Act requiring a permit application to the Ministry of Labor.
Regulations on qualification, screening criteria, permit application, permit cancellation, employment supervision, and other relevant matters relating to school teachers as referred to in the preceding provision shall be set by the Ministry of Education, and shall not be subject to the provisions of Article 46 Paragraph 2 and Article 48 Paragraph 2 of the Employment Services Act.
ESA Art. 48 Par. 1 is the one that exempts PR’s and foreign spouses:
Prior to employing foreign worker to engage in work, employer shall apply to the central competent authority for employment permit with relevant documents submitted. However, the following foreigners are exempted：
- A foreign worker to be employed as consultant or researcher by the respective government or their subordinate academic research institutes.
- A foreign worker has married a national of the Republic of China with a registered permanent residence in the Republic of China and has been permitted to stay therein.
- A foreigner employed at a public or registered private college/university in the field of a course of lectures or an academic research approved by the Ministry of Education.
I suspect there’s a misunderstanding here, intentional or not. The first part of ESA Art. 48 Par. 1 seems redundant, as ESA Art. 43 already establishes that the employer needs to obtain a work permit.
Unless otherwise specified in the Act, no foreign worker may engage in work within the Republic of China should his/her employer have not yet obtained a permit via application therefore.
However, Art. 48 Par. 1 also stipulates that the central competent authority (i.e. the Ministry of Labor, of which the Workforce Development Agency is a part) is responsible for issuing work permits, so to transfer responsibility to the MOE for the work permits of teachers (other than buxiban teachers), the AREFP stipulates that those teachers “不適用就業服務法第四十八條第一項本文向勞動部申請許可之規定”, of which “shall not be subject to the provisions of Article 48 Paragraph 1 of the Employment Services Act requiring a permit application to the Ministry of Labor” seems like a reasonable translation.
If the MOE is saying this actually exempts foreign teachers from ESA Art. 48 Par. 1 period, i.e. open work rights no longer apply to foreign teachers (other than buxiban teachers), that seems like a misreading of the legislative purpose. However, the official legislative reasoning doesn’t really clarify the matter.
Unofficial translation of bold text:
“But to encourage schools to expand recruitment of foreign teachers, in the proviso of Par. 1 clarifying the work permission and administration of the hiring of foreign professional talent coming to our country to hold positions as Employment Service Act Art. 46 Par. 1 Subpar. 3 school teachers, it is returned to adminstration by the Ministry of Education.”
Tl/dr: it’s not clear.
If I were at one of the schools currently facing a turnover crisis because of this confusion, I would try to get official statements from the MOL (responsible for the ESA), the MOE (responsible for the regulations cited earlier), and the 通用目 of the NDC (responsible for the AREFP) ASAP.
And now if you’ll excuse me, I have some alphabet soup to cook…