Regarding the circumstances where a foreign national who is employed has been absent from work and out of contact for three consecutive days, a circular was issued to interpret the handling principle that the employer shall notify the local competent authority, entry/exit authority, police authority and the Ministry of Labor in writing within three days (Taiwan)

2018 年 7 月 31 日

2018.6.4
Debby Yu

The Ministry of Labor issued the Lao-Dong-Fa-Guan-Zi 1070506159 Circular of June 4, 2018 (hereinafter, the “Circular”) to communicate that under Articles 56, Subparagraph 3 of Article 73 and Paragraph 1 of Article 74 of the Employment Service Act, if a foreign national who is employed has been absent from work and out of contact for three consecutive days, the employer is required to notify the local competent authority, the entry/exit authority, police authority and the Ministry of Labor in writing within three days. The Ministry of Labor will revoke the work permit of the foreign national based on the written notice and will immediately order such foreign national to exit Taiwan and not to work in Taiwan any more.

1. Criteria for a foreign national’s absence from work and out of contact for three consecutive days

According to this Circular, “absence from work for three consecutive days” under Article 56 of the Employment Service Act (hereinafter, the “Act”) means that a foreign national has actually been absent from work for three consecutive days without taking leave of absence or reporting the absence to his/her employer, any agent of the employer or service personnel who provide the living care of such foreign national. “Out of contact” refers to any of the following circumstances: (1) it is not possible to actually identify the whereabouts of foreign nationals; and even if they communicate with their employer through one-way or two-way communications software or by telephone, the employer still cannot confirm that the communicators are truly the foreign nationals or identify their whereabouts to fulfill the management and care responsibilities; or (2) although the foreign nationals agree to rehousing arrangements or has reported a change to the accommodation location, still they do not live in the rehousing unit or do not report their accommodation locations to the extent that the rehousing unit or local competent authority cannot specifically identify their whereabouts. However, foreign nationals who have sought help, within three days after leaving the premises of their employers, from the 1955 Labor Consultation and Complaint Line, the Ministry of Labor, local competent authorities, rehousing units recorded with the Ministry of Labor or the representative offices of their home countries in Taiwan with reporting or rehousing records are not “out of contact.”

2. Principal entities to which absence of foreign nationals from work for three consecutive days should be reported

It was further pointed out in this Circular that the employers, rehousing units or third parties that provide rehousing services to foreign nationals shall conduct the reporting to the competent authority and relevant units based on their circumstances. To wit, (1) if a foreign national is subject to such circumstances in an entry/exit airport, the employer’s premises or living care sites entrusted by the employer, the employer shall report such matter pursuant to law; and if a foreign national is subject to any of the following circumstances and has been out of contact for three consecutive days, the “employer” shall also handle the reporting: (i) the foreign national has entered Taiwan for less than three days and the work permit is not yet obtained; (ii) the permitted employment period has less than three days left; (iii) this is during a job switching period or a period the foreign national is required under laws and regulations to leave this country but has not done so; or (iv) this is during a period of labor disputes with the employer, and the employer does not request the provision of labor. (2) If this takes place in a rehousing unit recorded with the Ministry of Labor, the “rehousing unit” shall handle the reporting (see the Operating Guidelines for the Temporary Rehousing of Foreign Nationals Employed for Work Stipulated under Article 46, Paragraph 1, Subparagraphs 8 through 11 of the Employment Service Act). (3) If this takes place in third-party premises (including the circumstances where the foreign national lives on his/her own) after the foreign national leaves the employer’s premises, the “employer or the third party that rehouses the foreign national” shall report this matter to the local competent authority, which will then investigate ex officio.

3. Handling principles of competent authorities

When an employer reports that a foreign national has moved to a third party site and has been absent from work and out of contact for three consecutive days, the Ministry of Labor shall confirm with the local competent authority if the third party that rehouses the foreign national has reported the change in the accommodation location. If such third party has failed to report to the local competent authority when the whereabouts of the foreign national have become unknown, the Ministry of Labor shall revoke the work permit of the foreign national based on the employer’s notification and the first part of Article 73, Subparagraph 3 of the Act. If the third party has notified the local competent authority, the Ministry of Labor shall inform the local competent authority for the last changed accommodation location of the foreign national to conduct an onsite verification of the accommodation location. The local competent authority shall follow the “Practical Guidelines for the Implementation of Foreign Worker Administration and Visitation”. If the foreign national is not reached during the visit, the local competent authority shall demand, in writing, the foreign national to report to the local competent authority in three days pursuant to relevant service requirements under the Administrative Procedure Act, and specific investigation results such as the visitation table, official document notifying the foreign national to report to the local competent authority and the certificate of service shall be delivered to the Ministry of Labor. If the visitation by the local competent authority fails to reach the foreign national in person, and if the foreign national fails to report to the local competent authority by its designated time, it shall be deemed that such foreign national has been out of contact for three consecutive days, and the Ministry of Labor shall revoke the work permit pursuant to the first part of Article 73, Subparagraph 3 of the Act.

In addition, if an employer fails to indicate that a foreign national has moved to a third-party location at the time of reporting, the Ministry of Labor will revoke the work permit pursuant to the first part of Article 73, Subparagraph 3 of the Act. If the foreign national or the third party that rehouses the foreign national subsequently reports that the foreign national has been rehoused in such third party site and has reported the change of accommodation location to the local competent authority, the local competent authority and the Ministry of Labor are required to investigate and verify pursuant to the above investigation procedure. If the outcome of the investigation indicates that the foreign national was not out of contact for three consecutive days, the Ministry of Labor shall cancel the above disposition that revokes the work permit in accordance with Articles 117 and 118 of the Administrative Procedure Act.

In addition, if a foreign national has been out of contact for three consecutive days in a third-party site after leaving the employer’s premises to the third-party site, when the third party that rehouses the foreign national reports to the local competent authority, the local competent authority shall accept the third-party reporting in accordance with Article 168 of the Administrative Procedure Act, and the local competent authority and the Ministry of Labor shall conduct the investigation and verification pursuant to the above-mentioned investigation procedure.