By Hung Ou Yang
The Taiwanese Labor Standards Act has been amended multiple times in the past few years for further protection of the labor rights. Also, the Ministry of Labor in Taiwan announced the Enforcement Rules of the Labor Standards Act (“Enforcement Rules”) on 14 February 2019 to deal with the ambiguities in the Taiwanese Labor Standards Act. We brief the major amendments with regard to an employment contract and prepare a simple checklist for employers who have to pay attention to compliance with the employment regulations for certain recurring issues regarding mandatory insurance, wages, attendence and working overtime, holidays and female employees.
1. An employment contract shall clearly define the rights and obligations by and between an employer and an employee. Here, the employer shall provide the definition and method for calculation of every kind of wages.
2. An employment contract shall clearly define the term of annual paid leaves, time of payment and method of calculation, of wages paid for unused annual paid leaves, as follows:
(1) The employer shall, within 30 days since the requirements of the employee’s annual paid leaves have been met, notify the employee that he/she could arrange the annual paid leaves.
(2) The employee entilted to the annual paid leaves may use such leaves during the period of an anniversary year (starting from the date of employment), a calendar year, an academic year, a fiscal year, or any annual duration as stipulated by and between the employer and the employee.
(3) When the employee has not used the annual paid leaves in the end of a given year as stipulated by and between the employer and the employee or because of the termination of the employment contract, the employer shall pay wages instead for the days not used for annual paid leaves. However, the employer may also negotiate with the employee so that the annual paid leaves may be used in the next year with mutual consent. For the annual paid leaves extended to but still not used in the next year, the employer is required to pay wages instead. See Section 4 of the Taiwanese Labor Standards Act.
(4) When the employer is required to pay wages to the employee for the annual paid leaves not used, the employer shall pay at the payment date of salary originally agreed in the employment contract or within 30 days after the end of a given year.
Check List for Complying with the Taiwanese Labor Standards Act
Regarding the Mandatory Employee Insurance
1. Do employees of your company exceed 4? If yes, an employer shall purchase the mandatory labor insureance.
Please note that any company which has employees not less than 5 is required to purchase the mandatory labor insurance on behalf of the employees even if an employee requests the employer not to do so or signs a written declaration as a waiver for any reasons. Any such declaration which waives the mandatory labor insurance protection is invalid as a matter of law.
2. Does your company deposit 6% of wages each month as labor pension fund for every employee subject to new pension project?
Please note that any business subject to the Taiwanese Labor Standards Act is required to deposit 6% of wages as labor pension fund on behalf of every employee even if an employee asks not to deposit or signs a written declaration as a waiver. Any such declaration which waives the labor pension is invalid as a matter of law.
3. Does your company bear the 6% labor pension fees for employees?
Please note that the employer shall deposit 6% of the wages for every employee as labor pension fund on behalf of the employees and shall never deduct it from the wages.
Regarding the Wages:
1. Does your company keep a wage list recording the structure, the addition and the deduction of wages of every employee?
Please note that the employer shall keep a wage list recording the structure, the addition and the deduction, and the total amount of wages of every employee.
2. If your company does keep a wage list, how long do you have to keep the wage list?
Please note that the wage list shall be kept for 5 years even if the employee leaves the company.
3. Does your company stipulate wages less than the statutory basic wage?
Please note that the statutory basic wage for a monthly paid employee is NTD 23,800. Please note that the statutory basic wage for an hourly paid employee is NTD 158.
4. How does your company deduct from wages if an employee arrives late or leaves early?
Please note that deducting wages shall be proportionate to the time duration which an employee has been late or absent and based on the wages stipulated by both parties. For example, if an employee's monthly wage is NTD 24,000, NTD 166 may be deducted for 10 minutes late [(24000/240/60)*10]
Regarding Attendance and Overtime
1. How does your company record the time of employees’ attendance?
Please note that the employer shall keep employees’ attendance records and store them for 5 years. An employer shall use minute as the unit of the attendance record. An employer will be subject to fine when using hour as the unit of the attendance records.
2. Does your company record the time of employees’ attendance including minutes?
Employees’ attendance records shall be kept on a daily basis. Again, an employer shall use minute as the unit of the attendance record.
3. Has overtime been agreed by labor union or by the employer and employee in a conference in your company?
With the consent of a labor union, or with the approval of a employer-employee conference if there is no labor union in a business entity, overtime may be implemented in addition to regular working hours.
4. Does your company have application system for overtime?
Please note that an employer shall pay overtime wages to employees who work overtime, pursuant to Article 24 of the Taiwanese Labor Standards Act.
5. Can an employee who works overtime choose between overtime wages or compensatory leaves?
Please note that an employer shall ask an employee who works overtime to choose between overtime wages or compensatory leaves “every time.” The employee shall not be asked to use compensatory leaves as the only choice.
6. Is there any time limitation for the use of compensatory leaves in your company?
The employer and the employee may reach an agreement on the time limitation for the use of compensatory leaves but may not exceed the end of a given year. If exceeding the time limitation, the employer shall pay overtime wages in accordance with the Taiwanese Labor Standards Act.
Regarding the Holidays
1. How does your company do if an employee attends on duty on national holidays?
An employer shall give employees paid leaves as compensation when working on national holidays. In addition, if an employee agrees to work on national holidays, the employer shall pay double wages. To be more specific, it shall be additional one day wage for a monthly paid employee regardless of how many hours the employee working on the national holiday. It shall be double hour wage multiplied by the hours on duty, for an hourly paid employee.
2. How will holidays be arranged for employees on shifts?
Any employee is entitled to 2 holidays per 7 days, in which one day is a mandatory holiday and the other is a non-mandatory holiday.
3. Does your company adopt a five‐day workweek system?
First, from 1 August 2016, there shall not be more than 6 workdays between 2 holidays of an employee. Secondly, if the regular working time of an employee is 8 hours a day, he/she is entitled to 2 holidays per week under the Taiwanese Labor Standard Act. Third, if the regular working time of an employee is 8 hours a day, but he/she has only 1 holiday per week or 2 holidays on alternating weeks, the employer shall pay him/her overtime wages.
4. Does any employee who has more than 1 year of service have annual paid leave?
Please note that any employee who has worked continually for the same employer or business entity for a certain period of time shall be given annual paid leaves on an annual basis based on the following rules:
a. Three days for service of six months or more but less than one year.
b. Seven days for service of one year or more but less than two years.
c. Ten days for service of two years or more but less than three years.
d. Fourteen days for service of three years or more but less than five years.
e. Fifteen days for service of five years or more but less than ten years.
f. One additional day for each year of service over ten years up to a maximum of thirty days.
5. How does your company do with unused annual paid leaves of an employee after termination of the annual duration stipulated?
Wages must be paid for annual paid leaves not used by employees because of the termination of the annual duration stipulated or termination of contracts.
Regarding Female Employees on Night Shifts
1. Is it necessary for a female employee of your company to be on duty from 10:00 PM to 6:00 AM?
Any employer shall not render the female employee perform her work between ten o'clock in the evening and six o'clock in the following morning.
2. Does the labor union agree to let female employees be on duty at night?
With the consent of a labor union, or if there is no labor union in a business entity, with the approval of the employer-employee conference, and if the necessary safety and health facilities are provided and when there is no public transportation facilities available, transportation facilities are provided or dormitories for female employees are arranged, thus the employer may make his/her female employee perform her work on night shifts.
3. Does your company let female employees who are pregnant or are feeding their babies to be on duty at night?
Any employer shall not make the female employee who are pregnant or are feeding their babies perform her work between ten o'clock in the evening and six o'clock in the following morning.
Authour: Hung Ou Yang
Managing Partner
Taipei
+886-2-2707-9976
[email protected]
Copyright Brain Trust International Law Firm
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
撥打電話