Ch.5-02- Hiring in Taiwan

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Day-offs

Taiwan’s labor law provides various types of days-off, as shown in the following table:

CategorySourcePrinciple
Regular LeaveArticle 36, Labor Standards ActA worker shall have two regular days off every seven days. One day is a regular leave and the other one is a rest day.
National HolidayArticle 37,
Labor Standards Act
Leaves shall be granted for national holidays, holidays, and Labor Day which are designated as holidays by the Ministry of the Interior and holidays designated by other Central Competent Authority.
Annual LeaveArticle 38,
Labor Standards Act
1. Three days for service of six months or more but less than one year.
2. Seven days for service of one year or more but less than two years.
3. Ten days for service of two years or more but less than three years.
4. Fourteen days for service of three years or more but less than five years.
5. Fifteen days for service of five years or more but less than ten years.
6. One additional day for each year of service over ten years up to a maximum of thirty days.
Marriage LeaveArticle 2, Regulations of Leave-Tak ing of WorkersOn wedding day, a worker shall be entitled to eight days of wedding leave with pay.
Funeral LeaveArticle 3, Regulations of Leave-Tak ing of Workers1. On the death of parent, foster-parent, step-parent, spouse, a worker shall be entitled to eight days of funeral leave with pay.
2. On the death of grand-parent, son or daughter, parent of spouse, foster- parent or step-parent of spouse, a worker shall be entitled to six days of funeral leave with pay.
3. On the death of great-grandparent, brother or sister, grand-parent of spouse, a worker shall be entitled to three days of funeral leave with pay.
Sick LeaveArticle 4, Regulations of Leave-Tak ing of Workers1. For the non-hospitalized, a total of less than thirty days in one year.
2. For the hospitalized, not exceeding one year.
3. The total of hospitalized and non-hospitalized sick leave shal l no t exceed one year.
4. When a worker diagnosed with cancer (including car cinoma in situ) or pregnancy with threatened abortion by physician , out-patient treatment period shall be included to hospitalized sick leave. Where accounted ordinary sick leave does not exceed thirty days in one year, fifty percent of salary shall be paid. In cases where Labor Insurance payments do not reach fifty percent of salary, the employer shall make up the difference.
Occupational Sick LeaveArticle 6, Regulations of Leave-Tak ing of WorkersIn the event of disability, injury, or sickness on account of occupational accident, a worker shall be entitled to occupational sickness leave during the period of medical treatment or recuperation.
Personal LeaveArticle 7, Regulations of Leave-Tak ing of WorkersNot exceeding 14 days in one year. (without pay)
Official LeaveArticle 8, Regulations of Leave-Tak ing of WorkersA worker shall be entitled to official leave with pay according to legal regulations, the time limit of which shall be determined by actual requirements.
Menstrual LeaveArticle 14, Act of Gender Equality in EmploymentOne day menstrual leave each month. If the cumulative menstrual leaves do not exceed three days in a year, said leaves shall not be counted toward days off for sick leave. All additional menstrual leaves shall be counted toward days off for sick leave.
Maternity LeaveArticle 15, Act of Gender Equality in Employment
Article 50, Labor Standards Act
1. Maternity leave for 8 weeks before and after childbirth.
2. Maternity leave for 4 weeks after miscarriage (more than 3 months of pregnancy).
3. Maternity leave for 1 week after miscarriage (at least 2 months of pregnancy, less than 3 months).
4. Maternity leave for 5 days after miscarria ge (under 2 months of pregnancy).
Paternity LeaveArticle 15, Act of Gender Equality in Employment5 days of flexible paternity leave, on the day the spouse birth and 15 days before and after delivery.
Prenatal Visit LeaveArticle 15, Act of Gender Equality in Employment5 days of leave for pregnancy checkups.

Dismissal

In order to protect the labor’s rights and interests, employers must comply with the Labor Standards Act when dismissing employees. Failing to comply the law when dismissing employees is called illegal dismissal. When employers illegally dismiss employees, labor disputes may ensue, thus employers need to pay more attention to the intricacy of this kind of issues. The dismissal conditions stipulated in the Labor Standards Act can be divided into three main types:

● Voluntary resignation
Voluntary resignation means that the worker himself/ herself agrees to resign, so the employer does not have to pay the severance fee in this situation.

● Involuntary resignation

Involuntary resignation is the so-called lay-off. To dismiss employees, the following conditions must be met:

1. Compliance with Articles 11 and 13 (proviso) of the Labor 3 Standards Act. As for Article 20 , dismissing employees can only happen under certain circumstances, including:

• when the business is closed down or transferred.
• Where the employers’businesses suffers an operating losses, or business contractions.
• Where force rnajeure necessitates the suspension of business for more than one month.
• Where the change of the nature of business necessitates the reduction of workforce and the terminated employees cannot be reassigned to other suitable positions.
• A particular worker is clearly not able to perform satisfactorily the duties required of the position held.
• The employer’company cannot continue t operate due to natural disasters, incidents or other force majeure, and is reported to the governmental authority for approval;
• When the company is reorganized or transferred.

The circumstance of Article 14 of the Labor Standards Act is also involuntary resignation, but it is the provision of the termination of the contract by the workers, therefore it is not listed.

2. The notice period specified in Article 16 of the Labor Standards Act should be complied.

In order to avoid unethical dismissal, an employer should notify the labor in advance, and the length of the notice period varies according to the length of service. The regulations are as follows:

• Where a worker has worked continuously for more than three months but less than one year, the notice shall be given ten days in advance.
• Where a worker has worked continuously for more than one year but less than three years, the notice shall be given twenty days in advance.
• Where a worker has worked continuously for more than three years, the notice shall be given thirty days in advance.

In addition, the notice period is still the period of employment, so wage still has to be paid during the notice period.

3. The severance payment is paid in accordance with Article 17 of the Labor Standards Act.

When dismissing employees, labor wages must be paid, depending on the seniority and the notice period. The regulations are as follows:

• If the worker continues to work for a business entity owned by the same employer, severance pay that is equal to one month’s average wage for each year of service;
• The severance pay for the months remaining after calculation in accordance with the preceding subparag raph, or for workers who have been employed for less than one year shall be calculated propor tion all y; any period of employment less than a month shall be calculated as one month.
• Employers shall issue the severance pay of the preceding Parag raph within 30 days after the labor contract is terminated.

● Expulsion
Expulsion happens when an employee has conducted a major mistake, such as violent behavior, deliberate damage, etc. The employer can only lay off the employee by this method since the circumstances are serious. Since this method seriously affects the labor rights of workers, while the employers do not need to pay severance fees; therefore, the Labor Standards Act only allows using this method to lay 。ff employees under certain circumstances.

  1. Where a worker misrepresents any fact at the time of signing of a labor contract in a manner which might mislead his/ her employer and thus caused him/her to sustain damage therefrom.
  2. Where a worker commits a violent act against or grossly insults the employer, his /her family member or agent of the employer, or a fellow worker.
  3. Where a worker has been sentenced to temporary imprisonment in a final and conclusive judgment, and is not granted a suspended sentence or permitted to commute the sentence to payment of a fine.
  4. Where a worker is in serious breach of the labor contract or in serious violation of work rules.
  5. Where a worker deliberately damages or abuses any machinery, tool, raw materials, product or other property of the employer or deliberately discloses any technical or confidential information of the employer thereby causing damage to the employer.
  6. Where a worker is, without good cause, absent from work for three consecutive days, or for a total six days in any month.

    Where an employer desires to terminate a labor contract under Subparagraphs 1 and 2, Subparagraphs 4 to 6 of the preceding paragraph, he/she shall do so within thirty days from the date he/she becomes aware of the particular situation.

Reference

This article has already explained the important labor laws, but the labor law is highly regulated with complexity and mercurial. If there is any uncertainty, you may ask the Ministry of Labor or the labor bureaus of local governments, or visit their websites. In addition, the Ministry of Labor provides a self­inspection form of labor conditions, so that employers can manage their own compliance with the law. The form is attached to this document for everyone’s use.

Labor Condition Audit

• Preparation

  1. Labor Standards Act has been enforced for more than thirty years to date; with an eye to protecting labor rightsby instructing employers to comply with the law, we compile focal points as follows for business units to do labor condition audit.
  2. A business unit needs to prepare the following paperwork and finish relative requirements:
    • Sign labor contracts with employees.
    • Labor’s Name Card (containing labor’s name, sex, birth date, nationality, education information, address, ID, the date of starting the work, salary, insurance, rewards and punishments, etc.).
    • Attendance record (including attendance book and cards, electronic data capture, ID badge, biometric systems and check in system, etc.).

• Salary book(including the exact items, amount, total salary, and the amount unpaid due to the day-offs.)
• Prepare agreement forms regarding flextime (Labor Standards Act, Art. 30 and Art. 30-1), extended working hours (Labor Standards Act, Art. 32) and work undertaken at night time (Labor Standards Act, Art. 49)
• If business sectors undertake the following measures, they need to gain the consent from labor unions; if there’s no labor union, they need to gain the consent via labor-management conference whilst the number of employees is above thirty, business sectors shall report to the local administry, which aligns with Labor Standards Act, Art. 34 and 36.

  • Extra working hours limitation according to Labor Standards Act, Art. 32, Section 2
  • Taking time shifts according to Labor Standards Act, Art. 34, Section 2
  • Official holidays according to Labor Standards Act, Art. 36, Section 4
    • Applied for Insurance Program
    • Put relative measures into practice according to Labor Standards Act, Art. 84-1 (You may look into further details by reaching to the official site of Ministry of Labor.)

3. In case that any problems get in your way, you may contact the authorities concerned via Ministry of Labor or give a call to 0800-085151 (from 8 a.m. to 6 p.m.)

● Highlights of the content

ContentLaw
An employer shall prepare and maintain a worker record card and it shall be kept on file by the employer for at least five years after the date a particular worker ceases to be employed.Labor Standards Act, Art. 7
Definite contract for employees shall be measured according to relative regulations.Labor Standards Act, Art. 9
A worker shall be paid such wages as determined through negotiations with the employer, provided, however, that such wages shall not fall below the basic wage. (You can refer to 。fficial website of Ministry of Labor for the basic wage.)Labor Standards Act, Art. 21 (1)
Wages shall be paid in full directly to the worker at the appointed time.Labor Standards A c t , A r t . 2 2 , Section2
Except as otherwise agreed to by the parties to a labor contract or when wages are paid in advance on a monthly basis, wages shall be paid on a regular basis at least twice a month; the details of wage computation must also be provided. This shall also apply to wages computed on the basis of piece by piece work.
An employer shall keep a worker payroll roster in order to record entries such as wages payable, the details of wage computation and the total sum of wages paid. This payroll roster shall be kept on file for at least five years.
Labor Standards Act, Art. 23
An employer shall pay worker overtime wages using the following basis:
• When the overtime work does not exceed two hours, the worker shall be paid, in addition to the regular hourly wage, at least an additional one-third of the regular hourly rate.
• When the overtime work is over two hours, but the total overtime work does not exceed four hours, the worker shall be paid, in addition to the regular hourly wage, at least an additional two-thirds of the regular hourly rate.
• When the overtime work requested is governed by Paragraph 4 of Article 32, the worker shall be paid two times the regular hourly rate.
The total number of overtime shall not exceed forty-six hours a month; however, the extension of working hours, with the consent of a labor union, or if there is no labor union exists in a business entity, with the approval of a labor-management conference, shall not exceed fifty-four hours a month and one hundred and thirty-eight hours every three months.
Labor Standards Act, Art. 24 and Art 32, section 2.
The employer shall calculate the hours of compensatory leave based on the hours of work performed, as the worker chooses to take compensatory leave with the consent of the employer. The period of the compensatory leave shall be agreed on by both the employer and the worker; should compensatory leaves not be used by workers upon the expiration of the compensatory leaves or the termination of the contracts, wages shall be paid based on the day when working hours are extended or the rest day when the worker performs work.Labor Standards Act, Art. 32-1
Normal working hours cannot exceed eight hours per day, which cannot exceed 40 hours in total for a week. In case you may take flextime as your measure, please visit the official site of Ministry of Labor for your reference.Labor Standards Act, Art. 30, section 1 to 3 and Art.30-1
Employers shall prepare and keep worker attendance records for five years.Labor Standards Act. Art. 3 O. section 5 to 6.
When an employer has a necessity to have his/her employee to perform the work besides regular working hours, he/she, with the consent of a labor union, or if there is no labor union exists in a business entity, with the approval of a labor- management conference, may extend the working hours.Labor Standards A c t , A r t . 3 2 , Section 1
If a rotation system is adopted, workers on such shifts shall be rotated on a weekly basis and workers who are on rotation shall be granted a rest period of at least eleven hours continually. A rest period of at least eight continuous hours shall be granted after the Central Regulatory Authority with jurisdiction over the business (or industries) has reviewed with the Central Competent Authority. On top of that, when an employer has more than thirty employees, he/she shall report it to the local competent authority for record.Labor Standards Act, Art. 34
A worker shall be permitted to have a break for at least thirty minutes after having worked for four continuous hours.Labor Standards Act, Art. 35
A worker shall have two regular days off every seven days. One day is a regular leave and the other one is a rest day. (If you take flextime, related regulations can be referred to the official website of Ministry of Labor.)
An employer may adjust the regular leave every seven days with the consent of the Central Regulatory Authority with jurisdiction over the business (or industries) designated by the Central Competent Authority.
The regular leave shall be adjusted with the consent of a labor union, or if there is no labor union exists in a business entity, with the approval of a labor-management conference. When an employer has more than thirty employees, he/she shall report it to the local competent authority for record.
Labor Standards Act, Art. 36
Leaves shall be granted for national holidays, holidays, and Labor Day according to the regulation.Labor Standards Act, Art. 37
A worker who has worked continually for the same employer or business entity for over six months shall be granted annual paid leaves on an annual basis, whose time shall be determined by the worker.
Wages must be paid for annual paid leaves not used by workers because of the termination of annual or termination of contracts. For unused annual paid leaves extended until the following year according to the agreement reached by employers and workers, wages must be paid for those not used by workers at the end of the following year or upon the termination of contracts.
The employer shall record the dates of annual paid leaves of workers and the total amount of the wages paid for annual paid leaves have not been taken in the worker payroll roster.
Labor Standards Act, Art. 38
Wages shall be paid by an employer to a worker for taking leaves for regular leaves and rest days, holidays and annual paid leaves. When an employer has obtained the consent of a worker to work on a holiday, the employer shall pay the worker at double the regular rate for such work.Labor Standards Act, Art. 39
No employer shall employ any person under the age of fifteen. This does not apply if the person has graduated from junior high school or the nature and environment of the work have been determined and authorized by the competent authority that no harm will result to the worker’s mental and physical health. Provisions in child labor regulations shall apply, mutatis mutandis, to the employee of the preceding paragraph.Labor Standards Act , Art . 4 5 , section 1
Employer of workers who are less than eighteen years old shall keep the letters of consent from the legal guardians and age certificates of such workers on file.Labor Standards Act, Art. 46
Child workers’ daily working hours shall not exceed eight hours, weekly working hours shall not exceed forty hours, and working on regulated day off is not permitted.Labor Standards Act, Art. 47
No child worker shall be permitted to work between eight o’clock in the evening and six o’clock in the following morning.Labor Standards Act, Art. 48
An employer shall not make his /her female worker perform her work between ten o’clock in the evening and six o’clock in the following morning. However, with the consent of a labor union, or if there is no labor union in a business entity, with the approval of a labor-management conference, and the following requirements in each subparagraph are met, the precedmg restncbons are not applied:
1. The necessary safety and health facilities are provided.
2. When there is no public transportation facilities available, transportation facilities are provided or dormitories for female workers are arranged.
Labor Standards A c t , A r t . 4 9 , section 1
A female worker shall be granted maternity leave before and after childbirth for a combined period of eight weeks. In the case of a miscarriage after the first three months of pregnancy, the female worker shall be permitted to discontinue her work and shall be granted maternity leave f or a penod of four weeks.
If the female worker referred to in the preceding paragraph has been employed for more than six months, she shall be paid regular wages during the maternity leave, while if her period of service is less than six months, she shall be paid wages at half of the regular payment.
Labor Standards Act, Art. 50
An employer hiring more than thirty workers shall set up work rules in accordance with the nature of the business, and shall publicly display the said rules after they have been submitted to the competent authorities for approval and record.Labor Standards Act,Art. 70
A business entity shall hold meeting to coordinate worker-employer relationships and promote worker-employer cooperation and increase work efficiency. The regulations governing for labor-management conference shall be prescribed by the Central Competent Authority in concert with the Ministry of Economic Affairs and then reported to the Executive Yuan for approval.
Business sectors shall have a meeting three months a time, with more than half of the number of employers and employees attending it. They will come to an agreement with over 3/ 4 attendees’approval. On top of that, business with more than thirty employees should hold the meeting respectively.
Labor Standards Act, Art. 83 and Regulations for Implementing Labor- Management Meeting
For protecting employees’retirement payment, employers shall precisely calculate the appropriation rate of labor retirement reserve fund in accordance with such factors as the number, wages, seniority and turnover rate of those employees who are applicable to the retirement mechanism in the Labor Standards Act and reserve their seniority prior to the application of the Act.Labor Pension Act,Art.13
For those complying with the latest regulation, they need to turn in the labor pension in time.Labor Pension Act,Art.14
Other conditions for hiringRelative regulations

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