Tiffany Hsiao
The Kaohsiung Branch of the Taiwan High Court handed down the 108-Lao-Shang-Yi-98 Decision of February 12, 2020 (hereinafter, the “Decision”), holding that if the night shift snack allowance is a regular payment for workers under normal circumstances and is also recurrent in the system, it should be part of the wages.
According to the facts underling this Decision, the Appellees were all former employees of the Appellant and have retired. The Appellees calculated their pension bases as shown in the column headed “Pension Base” in the Schedule pursuant to Article 9, Paragraph 1 of the Rules for the Retirement of Factory Workers in the Taiwan Province (hereinafter, the “Retirement Rules”) before the effective date of the Labor Standards Law (hereinafter, the “Law”) and Article 55 of the Law after its effective date. During the Appellees’ employment with the Appellant, the Appellant operated around the clock with employees working three shifts, namely, the day shift, the evening shift and the night shift. Each month they all received “night shift snack allowances” (hereinafter, the “Allowances at Issue”). Such Allowances at Issue were normally and regularly expectable wages of the Appellees and were by nature “considerations for services” and “recurrent payments.” Since they were part of the wages, they should be included in the calculation of average wages. However, since the Appellant failed to include the Allowances at Issue in the calculation of the Appellee’s average wages, there were shortfalls in pension payments. Therefore, the Appellant filed a lawsuit pursuant to Article 9, Paragraph 1 and Article 19 of the Retirement Rules and Article 55 and Article 84-2 of the Law to request that the Appellant separately supplement pension payment to the Appellees.
According to the Decision, wages should be “considerations for services” and “recurring payments,” and what the payment is called or whether it is made in cash or in kind is moot. The so-called “recurring payment” refers to payment usually received under normal circumstances. So long as they are compensation related to work and are current in nature, they may be included in the average wage for pension calculation. The so-called “consideration” is focused on whether there is consideration equivalence relationship between the services of workers and the payment of the employer. Therefore, to determine if the Allowances at Issue are part of the wages, it is necessary to consider if the Allowances at Issue are considerations for workers’ services and if they are recurrent payments.
It was further indicated in this Decision that the Appellees worked around the clock on three regular shifts, namely, the day shift, evening shift and the night shift; and the Appellant paid the Allowances at Issue based on the number of the Appellees’ evening shifts or night shifts. In view of the payment reasons, it can be concluded that the Allowances at Issue were paid by the Appellant not to meet temporary business needs but were compensation that could be regularly received by the workers under specific conditions. Therefore, such payment made by the employer due to specific work conditions should be deemed considerations to the workers for their shifts. The Allowances at Issue were agreed between both parties as a work condition for specific time, are normally and usually obtainable and are recurrent in the system. Since they meet the criteria of “consideration for services” and “recurrent payment,” they should be part of wages.