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Employment Services Act amendments strengthen labor rights


I. Background

Taiwan first imported foreign labor in 1989 to help with the construction of large public works projects under the Six-Year National Development Plan, and in 1992 the Employment Services Act (the "Act") was promulgated to give labor imports a firm basis in law.

To protect Taiwan citizens' right to employment, however, the government's foreign labor import policy has always included a licensing system that limits both the job categories in which imported foreign labor can be employed and the total number of foreign laborers. Industries currently permitted to employ foreign labor include manufacturing, construction, maritime fishing, slaughterhouses, institutional and outreach nursing, and home nursing and assistants. Pursuant to amendments to Article 52 of the Act promulgated on May 13, 2003, upon completing the term of their contract, a foreign laborer was also required to leave Taiwan for at least one day. That provision prevented foreign laborers from establishing long-term residence as part of a covert scheme to immigrate to Taiwan.

Taiwan is currently facing an aging population and low birth rate, as well as the need for high-quality manpower in a globalized economy. To address those trends and establish a mechanism to retain high-quality foreign labor, the Immigration Act has been amended several times. As there is no longer any concern that foreign laborers will establish long-term residency and thereby immigrate to Taiwan by covert means, ruling-party legislators proposed draft amendments to Article 52 of the Act. Those amendments passed a third and final reading in the Legislative Yuan on October 21 of this year, eliminating the requirement that foreign laborers leave the country for one day upon expiration of their employment permit and then re-enter the country to work. Another new provision allows foreign laborers to request leave to visit family in their native country during the term of their employment permit, and requires employers to grant such requests. These amendments were promulgated by the president and entered into force on November 5, benefitting 600,000 foreign workers now in Taiwan.

II. Elimination of one-day exit requirement for foreign laborers has no effect on job opportunities for domestic labor

The amendments to Article 52 of the Employments Services Act eliminated the requirement that, after working in Taiwan for three years, a foreign laborer had to leave the country for at least one day. The qualifications for extending a foreign laborer's contract, however, remain unchanged. In the future, employers that require labor and wish to continue to employ foreign laborers are still required to first recruit personnel domestically based on reasonable working conditions. Only if the number of domestic laborers recruited is insufficient will the employer then be permitted to apply to continue employing foreign laborers. If an employer refuses, without legitimate reason, to hire a domestic job seeker, permission to hire foreign laborers will be denied. These amendments therefore have no effect on job opportunities for domestic workers.

III. Amendments give equal consideration to foreign laborers' rights and employers' manpower needs

A. Article 52 of the Act previously required that, after being employed in Taiwan for three years, a foreign laborer had to leave the country for at least one day. If, after leaving the country, a laborer wanted to return to Taiwan to work, they also had to pay a labor broker's fee. For employers, employee absences to meet these requirements created gaps in the labor supply; for laborers, the broker's fee was a tremendous financial burden. Under the amended Act, employers are permitted to directly renew employment contracts, reducing potential gaps in the labor supply as well as training costs, making manpower deployment more flexible. The financial burden on Taiwan's foreign laborers was also eased, protecting their work-related rights and interests and taking a major step forward in protecting their human rights.

B. Under the amended Act foreign laborers are permitted, during the term of their employment contract, to apply to their employer for leave to return to their home countries. By law, the employer cannot refuse that application. An employer that refuses such request and fails to rectify the situation within a specified period of time will be subject to a fine of not less than NT$60,000 and not more than NT$300,000, and their permission to recruit and hire foreign labor will be revoked.

Pursuant to the Labor Standards Act currently in force and the provisions of the labor contract, leave taken to visit family in a laborer's native country is classified either as the laborer's special leave for that year, or as personal leave for a trip home. Where such leave is designated as special leave, the employer pays the laborer's salary during the leave period. Where the leave is handled as personal leave, the employer need not pay the laborer's salary during that period. The government plans to amend the relevant regulations governing these matters to guarantee a laborer's right to take leave to return home.

IV. Coordinate efforts to amend relevant supporting measures

A. The Ministry of Labor, in coordination with the current amendments to the Act, will stipulate the relevant application process and administrative regulations in the Regulations on the Permission and Administration of the Employment of Foreign Workers for an employer and foreign laborer to renew an existing contract upon expiration. Where an original employer and foreign laborer do not renew an existing contract when it expires, the employment transfer regulations will stipulate an application procedure that gives foreign laborers whose contract was not renewed ample time to transfer to a new employer and continue to work. This process will both protect employers' right to hire labor and foreign laborers' right to employment.

B. To make it easier and more convenient for foreign laborers to come to Taiwan and work, the Ministry of Labor has set up a service center to help handle direct hiring procedures. The center provides diverse channels for importing foreign labor, with dedicated personnel to assist employers handle the direct hiring process without having to rely exclusively on labor brokers. After the current amendments are passed, the plan is to expand the direct hiring center's services to include facilitating the re-hiring of foreign laborers by the original employer, or transferring their employment permission to a new employer, all without engaging a labor broker to handle application documents.

V. Conclusion

After amending the current Act, the importation of foreign laborers remains a strategy designed to supplement the domestic labor market, and will not impact the rights of domestic laborers. The amendments will, however, simplify labor contract renewal procedures, reduce employee absences due to previous exit requirements, make manpower deployment more flexible, and reduce the financial burden imposed on laborers by foreign brokers. These moves will strengthen the employment rights of foreign laborers in Taiwan and enhance the nation's international image.

The government will continue to amend laws and regulations and carry out policy initiatives that create an economically sound and attractive labor environment, fostering harmonious and stable labor-management relations while taking a progressive stand on human rights.

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