Taiwan Labor Regulation Services Sgn2tw-LRS
January 14, 2020Taiwan Representative Office Setup Sgn2tw.ro
February 9, 2020Although we started as an accounting firm, we have been involved in HR related services since 2002.
We currently serve about 500 companies in Taiwan with payroll withholding and social welfare compliance services
Please Refer to: Taiwan Payroll Compliance Services
Taiwan’s Labor Standard Laws and regulations have changed a lot in recent years.
Naturally, we also provide consulting services on case management planning and planning in response to customers’ needs.
We have 5 senior HR specialists serving our clients.
Welcome to contact us:
E-mail: headquarter@evershinecpa.com
Or
Contact: Kerry Chen / International Payroll Service Manager/ USA Graduate with fluent English
Tel: +886-2-27170515 E105
Mobile: +886-939-357-000
When labor inspectors making a call to do labor compliance check, can your Taiwan subsidiary pass the examination?
Do you know what the key points of inspection are when labor inspector comes to your Taiwan office?
Can your company immediately provide the information required by the Labor Standard Law?
If the information cannot be provided, or if there is a problem with the information itself, how will the competent authorities impose penalties?
How bad would it be for your company’s image and goodwill if it were listed on a list of violations?
We uphold the attitude of providing professional services, tailor-made for you, exclusive to create enterprise labor health inspection services, and on-site pre-examination.
Through the professional personnel senior project service team, personally visit, for you to plan, design a complete company Labor Standard Law compliance system.
In addition to assisting you in establishing two-way communication with the competent authorities, and handling the statutory approval procedures of the competent authorities, And can effectively establish a clear and complete management control procedures, forms, in accordance with the relevant laws and regulations, and further promote labor harmony, to create more win-win.
We keep up with the latest labor policies and regulations, closer to the needs and feelings of your industry, to avoid unnecessary risks in human resource management.
Taiwan Labor management consulting
We provide the preparation of labor management procedures, such as working rules, labor contract, labor conference and other relevant labor-management procedures that conform to the latest laws in Taiwan.
We also support the implementation and maintenance of the above labor management procedures.
Let your company implement the human resources management function while complying with Taiwan’s latest Labor Standard Laws and regulations, To enhance the satisfaction and commitment of employees, improve the efficiency and effectiveness of human capital to maintain harmonious labor-capital relationship to help achieve sustainable business.
We provide the advice of corrective to the matters pointed out by “the corrective recommendation” issued by inspectors of the Labor Standards Inspection Office, responding to labor standards inspectors and the revision of internal regulations associated with the corrective.
Personnel system consulting
We propose the construction of a personnel system that matches the vision of your management philosophy and organizations aim (grade system, compensation plans, evaluation system, retirement and pension plans).
The features of Evershine service:
We uphold the attitude of professional service, tailor-made for you, create enterprise exclusive labor health inspection, and on-site pre-examination.
Through in-person on-site visits, for you to plan, design a complete company Labor Standard Law compliance system.
In addition to assisting you in establishing two-way communication with the competent authorities, and handling the statutory approval procedures of the competent authorities, And can effectively establish a clear and complete management control norms, processes and forms, in accordance with the relevant statutory requirements, and further promote labor harmony, create a win-win situation.
We keep a close eye on changes in government labor policies and regulations, close to your industrial needs and feelings, to avoid unnecessary risk management of human resources.
A Brief Introduction about how Taiwan’s Labor Standard Laws and Regulations to impact Enterprises
The Labor Affairs Act was passed on December 5, 2018 and come into force before the end of 2019. Enterprises will face greater challenges:
1. Expanded scope:
All workers may file a labor dispute complaint against the company, including regular employees, teaching students, dispatch workers and even job seekers.
2. The burden of proof on the management:
In the course of labor disputes, the labor force is in control and does not bear the burden of proof at all, and the company has a very high chance of losing the case unless it can present strong and strong evidence.
3. High compensation and fines:
If you cannot prove legal overtime, employees’ clock all the time will be counted into working hours, enterprises will face high overtime compensation and illegal fines.
4. Indirect labor cost increase:
If the company’s salary cannot prove the non-wage part, should be included in the labor health insurance, labor rebate, overtime pay, job disaster compensation and payment fees.
5. Professional complaints:
Never consider workers to be vulnerable or ignorant, workers do not have to call a lawyer, through trade union professional auxiliaries can easily fight with the company.
6. Speedy over:
three months to be closed in accordance with the law, six months to close a labor action, and mediation and litigation for the same judge, the enterprise wants to drag on.
7. Labor has no worries:
During the labor dispute mediation litigation, the company will continue to pay employees’ salaries, labor has more bullets to sue the company.
Common labor disputes:
1. Contract Dispute:
Labor Relations Not Clear.
2.”Working conditions” disputes:
working hours, overtime, compensatory time and other procedures do not comply with the relevant Labor Standard Laws and regulations.
3. “Termination of Contract” Dispute:
Disputes arising from incomplete procedures in the event of termination or dismissal of an employee.
4. “Wage Determination “Dispute:
The definition of wage and non-wage is not clear, affecting indirect labor costs.
5.” Occupational Accident Compensation” Dispute:
Group Insurance without Employer’s Compensation Liability.
6. “Preservation of Evidence” Dispute:
Failure to establish and preserve strong evidence in peacetime.
Enterprise Response and Protection Countermeasures in Face of Labor Incident Law:
1. Working Rules
Draft working rules and submit them to local authorities (e.g. Taipei Labor Bureau) for review.
2. Labor Contracts
Drawing up the labor contract and determining the applicable contract according to the type of employment.
3. Labor Council
Representatives of employers and employees are selected and sent to the competent local authorities for reference, and meetings are held to complete the legal effect of working conditions and create a win-win situation for employers and employees.
4. Supporting personnel management system
Diagnose, revise and import the relevant work flow, and assist in the implementation, and preserve all relevant evidence.
labor inspectors come to the door, enterprises should stand the test:
What are the key points to check when the inspector visits?
Can your company immediately provide the information required by the Labor Standard Law?
What is the penalty for failure to present, or if the information itself is questionable?
Harmful would it be to the company’s interests and goodwill if it were listed and published?
Share two labor management information that often bothers the company
The company’s obsession with the “Labor Standard Law 15.1 Minimum Years of Service”
When a worker leaves his or her job for no reason at all, what is commonly known as “arbitrary departure”, this is the situation where a dispute over the minimum length of service clause is most common.
The employer may enter into a minimum length of service clause with the worker, which is now recognized by the court.
But the fact that a worker leaves his job early after signing such a clause does not necessarily have to be compensated in accordance with the clause.
The Court has now developed a procedure for reviewing the minimum length of service clause, In other words, there is a clause in the labor-management agreement that if the employee has the fact of early departure, the employee does not necessarily need to pay the full amount of liquidated damages immediately.
When the employer comes to court to demand liquidated damages, the court will first review the “necessity” and “reasonableness” of the minimum length of service clause.
And then further consider the circumstances to determine whether to reduce the penalty.
First, whether there is a minimum length of service clause between employers and employees:
If the employer and the worker do not have a minimum length of service in advance,
The question is whether it is legal for an employer to set a penalty of a minimum number of years of service in the work rules.
At present, most courts consider work rules to be “stereotyped contracts” – that is, provisions pre-written by the employer, In addition, if the employee is not aware of the breach of the minimum length of service stipulated in the work rules, the contract for the employed worker shall be, Or knowing that he disagreed, even though the worker had agreed to comply with all the company’s requirements at the time of employment.
The employer cannot therefore demand liquidated damages from the worker, who cannot, of course, agree to abide by them if they are not aware of them; Express disapproval on the part of the employee is in addition to the “consent to comply with all the company’s requirements”.
In addition, the proviso is excluded, that is, the worker has not agreed to this provision, the employer shall not be able to claim liquidated damages from the worker on this basis.
Second, whether the worker leaves voluntarily:
As noted above, if a worker leaves his/her job involuntarily for reasons such as infringement of his/her labor rights, even if the court determines that the minimum length of service is valid, the worker is not required to pay a penalty for breach of contract.
Third, the minimum length of service clause is necessary and reasonable:
If the Court decides that the minimum period of service clause is not necessary or reasonable, it shall be null and void, Workers do not have to pay liquidated damages.
Therefore, when judging the minimum service terms, they should first understand the meaning of “contractual necessity” and “reasonableness of the terms”.
1. Minimum Length of Service Clause “Necessity of Agreement”:
The so-called “contractual necessity” of the minimum length of service clause refers to the necessity for employers to take advantage of the clause to protect the “expected benefits”.
As a result, workers acquire special skills which are indispensable to the employer’s business.
If the employer has not paid for the training of labor, only after the worker has left the service, Additional manpower must be recruited, trained, and minor inconveniences to employment management shall be deemed to have been caused by the lack of agreement on the minimum length of service provisions.
2. “Reasonableness” of the minimum length of service provision:
As for the “reasonableness” of the minimum length of service clause, does it mean that the agreed length of service is appropriate?
Such as the value of labor training in monetary terms, the cost of training borne by the employer, the length of the training period and the length of service agreed in advance.
It’s a benchmark for review of reasonableness.
When the employer spends only a very small proportion of the employer’s costs, the excessively long minimum service period is less reasonable.
Or loss of freedom to change jobs, flexibility in career planning and loss of benefits in respect of age for workers who have lost their freedom to change jobs within the minimum length of service, the existence or otherwise of adequate compensation is also a criterion that the court may consider.
If an employer unilaterally limits the number of years of service that a worker cannot leave on his own, he cannot ask for an excessively long minimum period of service.
Fourth, the minimum length of service clause of liquidated damages discretion:
In practice, after considering the necessity and rationality of the minimum term of service clause, if there is no problem, the worker can argue to the court that the penalty for breach of contract is too high, and ask the court to “reduce” the penalty for breach of the minimum length of service clause.
Under the Civil Law, the amount of liquidated damages agreed upon by the parties is too high and the court may reduce it to an equivalent amount.
However, the court will not take the initiative to collect and investigate whether the amount of liquidated damages agreed upon by the parties concerned is too high, which will automatically help the workers reduce the liquidated damages.
At this point, it is necessary for the labor to specify and prove the relevant facts, such as “how high” and “how much should be verified”, which are agreed upon in the contract.
The court will not reduce the amount of liquidated damages if the worker only claims to the court that the amount of liquidated damages is too high without any explanation or proof.
” Labor Standard Law 84.1 accountability ” Haunts the Company.
Article 84-1 of the Labor Standards Law:
The working hours, official holidays, holidays and night work of women may be agreed upon separately by the laborer and the employee upon the approval and announcement of the central competent authority.
The application shall be submitted to the competent local authorities for examination and approval, and shall not be subject to the restrictions prescribed in Articles 30, 32, 36, 37 and 49.
I. Supervisory, managerial or accountability professionals.
II. Work of a surveillance or intermittent nature.
Other jobs of a special nature.
The agreement referred to in the preceding paragraph shall be in writing and shall be based on the provisions of this Act and shall not be prejudicial to the health and welfare of the workers.
Article 84 (1) is a new article added on December 27, 1985.
The legislative reason is that “an employer may adjust the working hours for a particular job upon signing a contract or agreement with a labor or trade union”. 」
Rule 50.1 of the Enforcement Rules for the Labor Standards Law:
For the purposes of the first and second paragraphs of paragraph 1 or paragraph 1 of Article 84 of this Law, the supervision, managerial personnel, professional accountability personnel, surveillance or intermittent work shall be governed by the following provisions:
1. Supervisor and managerial personnel: shall mean the persons employed by the Employer to be responsible for the operation and management of the Enterprise,
And to the general labor employment, dismissal or work conditions have the power to determine the level of officers.
2. Accountability professionals: refers to those who perform a given task with expertise or technology and are responsible for its success or failure.
3. Surveillance work: refers to the work in a certain place to monitor the main.
4. Intermittent work: refers to the work itself carried out in an intermittent manner.
Prerequisites of article 84.1
1. Workers approved and announced by the central competent authority
Since there is a legal basis, it must be designated by the central authority, i.e. the Ministry of Labour, to be applied.
Detailed when the worker is applicable and when it is repealed may be found in Article 84-1 of the Labour Standards Act, a link of the Ministry of Labour
It should be noted that in most cases, it must be a certain position in a certain industry to be applicable, Instead of all the jobs in a certain industry, there are some jobs that are not limited to industry that are applicable.
Such as in charge of driving, airline aircrew, and security personnel of the security industry, insurance personnel, real estate broker real estate brokerage industry, and so on.
Therefore, it is not the employer’s own claim that his company is responsible for the application, it must be designated by the competent authorities in order to apply, and it is by no means applicable to all positions of the company as a whole.
2. Working hours, official holidays, holidays, and night work for women shall be separately agreed upon in writing by both sides of the employee, it is not subject to the provisions of Articles 30, 32, 36, 37 and 49.
The thing to look out for here is, Article 84.1 Exemption from section 30 of the Labor Standard Law (of working hours)、Article 32 (Overtime provisions)、Article36 (one holiday ;one leave)、Article 37(National Holiday）、Article 49 (Night work by women) the limitations of the rules.
But the responsibility system is not completely unlimited, but by the employee and the employee to agree on the relevant conditions, Reference must be made to the benchmarks established by the Labor Standards Act and must not compromise the health and well-being of the labor force and must be in writing or be accompanied by provisions relating to working hours, holidays and overtime pay.
Can refer to: Taipei City Government Nuclear Labor Standards Act Article 84-1 agreement to review the benchmark.3.
3. It must be reported to the local competent authorities for approval
Because of the unequal status of employers and employees, so for such personnel, if there is to meet the central authority designated object, In addition to a written contract, but also through the local authorities to verify the procedure is complete, check the process can refer to the county and municipal authority’s website.
If both parties have a written contract but have not made a record of it, is it possible to do so? And here you can see the Lord Chancellor’s explanation
4. Interpretation of No. 726-” Case on the Validity of Not Ratified and Not Otherwise Agreed by Article 84.1 of the Labor Standard Law”
“Article 84.1 of the Labor Standards Law provides that both parties to a labor contract shall have separate stipulations on working hours, official holidays, holidays and night work for women, Requirements should be reported to the competent local authorities for approval. This is mandatory. If not, it is not required by the competent local authorities. Such agreement shall not preclude the restriction provided for in Articles 30, 32, 36, 37 and 49 of the same Law, In the event of a civil dispute, the court shall, in the case of a civil dispute, agree separately on matters such as working hours without prior approval, unless such agreement can be made in public law against the employer, The purpose of the legislation for the protection of labor rights and interests shall be adjusted in accordance with Article 30 and other provisions, and the wages shall be calculated and paid in accordance with Articles 24 and 39 of the Law. “
Simply put, this provision is mandatory, if there is no provision, it cannot be said that the exclusion of Article 30 of the Law of Lloyds Law and other provisions of the restrictions, In the event of a civil dispute, the court may make adjustments on the facts of the case and may demand payment of overtime in accordance with the relevant provisions of the Act.
Employees’ Accountability is not unlimited
1. Not the whole company applies to accountability
It must be done by a person designated by the central competent authority, and it must be agreed in writing by both parties and approved by the local competent authority before it can be applied.
2. Accountability or Working Hours Cap
This is definitely not a system of “clocking in and out of work responsibility”. It is not a matter of finishing things before leaving the office. There is still a ceiling on daily working hours. This is also the biggest misunderstanding of most people.
3. Accountability System Still Requires Attendance Records
Working hours can be agreed separately, but there is still a daily normal working hours and maximum working hours restrictions, and although official holidays, vacation days can be agreed separately, but still should be given leave, but also to calculate overtime. Therefore, attendance records are still required, which is a responsibility that employers cannot shirk.
4. Overtime will still be paid beyond the agreed normal working hours
Assuming that the basic monthly salary is $23,100, the normal working week should be 40 hours per week and the average monthly normal working hours are about 174 hours.
But if it’s a security guard, the maximum normal working hours that might be agreed upon are 240 hours, and the maximum extended working hours are 48 hours, At this point, it is not possible to use 23100 yuan as the basis for calculating the normal work hours of the security personnel for 240 hours.
Details can refer to the Ministry of Labor Q& A: Applicable Labor Standards Law Article 84-1 of the workers ( such as the preservation of the preservation industry personnel) of the relevant provisions of the wages
5. Prudent use of accountability
Again, accountability is not unlimited, and the legal rule 84-1 can be adjusted for working hours and holidays. However, we have seen too many cases, 84 of them can be said to be overworked disaster areas, security personnel is the best proof of that.
If the working hours are to be more flexible, we still need to ensure that every worker has adequate rest time in order to perform better and lead a normal life.
Articles 17.1 and 63.1 of the Labor Law
On 24 May 2019, the Legislative Yuan approved the addition of articles 17.1 and 63.1 of the Labor Law.
It prohibit the Dispatched Entities (real employer entities) to interview dispatchers prior to hiring and transfer to other Dispatching Entities to recruit them in order to avoid the employer’s responsibility.
In the event of occupational disasters of dispatchers, the Dispatched Entities should undertake the compensation and compensation responsibility jointly with the Dispatching Entities so as to make the labor rights and interests protection of the dispatchers more complete and comprehensive.
The point is that Dispatched Entities (real employer entities) cannot interview dispatchers prior to hiring. If violating prohibited behavior in this clause Article 17.1, the Dispatched Entity (real employer entity) might be fined between NTD 90, 000 to 450,000
If you are interested in our services, please contact us:
E-mail: headquarter@evershinecpa.com
or
contact by phone in working hours of China time zone:
Manager Jerry Chu, well-English speaker, USA Graduate School Alumni
Mobile: +886-939-357-735
in Taipei
Additional Information
Taipei Evershine CPAs Firm
6th Floor, 378 Chang Chun Rd.,Zhongshan Dist., Taipei City, Taiwan R.O.C.
Near MRT Nanjing Fuxing Station
Principal Partner :
Dale C.C. Chen
CPA in Taiwan+China+UK/ MBA+DBA/ Patent Attorney in Taiwan
Mobile: +86-139-1048-6278
in China ;
Mobile:+886-933920199
in Taipei
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skype:daleccchen
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