Elizabeth Pai and Weke Chen
During 1985, in consideration of various employers implementing employees’ day/night shifts, the Ministry of Interior issued the “Notices on employers’ implementation of employees’ day/night shifts” (refer to Ministry of Interior’s Tai-Nei-Lao-Zi-357972 letter issued on December 5, 1985, hereinafter referred to as “Notice”). This Notice will become ineffective starting January 1, 2022 (refer to Ministry of Labor’s Lao-Dong-Tiao-3-Zi-1080130222 letter issued on March 11, 2019). The detail of this change is as follows:
1. “Employees’ day/night shifts” applicable under this Notice refers to employees, as requested by the employer, engaging in non-contractual duties like document reception and transfer, answering telephone calls, businesses sites patrolling, or emergency notifications, contact, or processing outside of working hours (Article 1 of the Notice). Moreover, the following works performed off-duty after work or during holidays were considered “employees’ day/night shifts” in practice: (1) attending to supervise whether vessels enters and exits the port and cargos are loaded and unloaded in time; (2) handling special circumstances requiring contact; and (3) night shifts for factory standby. (Refer to Supreme Court’s 2003 Tai-Shang-Zi-735 judgment and 2005 Tai-Shang-Zi-320 adjudication)
2. As the types of the above “employees’ day/night shifts” are different from usual works, employers paying “day/night shifts allowances” are not considered overtime payment. Moreover, its working hours aren’t limited by Article 32 of the Labor Standards Act concerning overtime hour’s limit. However, in some cases, the arrangements under the Notices were considered by the courts as a way to escape from the protective provisions of the Labor Standards Act that protects the employee against exploitation, and the courts ruled that the relevant standby hours should still be considered as the “overtime work“ under the Labor Standards Act. (Supreme Court’s 2002 Tai-Shang-Zi-1842 judgment and Taiwan High Court’s 2015 Chong-Lao-Shang-Geng(Yi)-Zi-6 judgment).
3. After the Notice ceases to apply, employees working non-contractual works outside of normal working hours will return to being governed by the provisions under the Labor Standards Act. Accordingly, employers shall pay overtime fees in accordance with the Labor Standards Act for any work outside of the “working hours” as stipulated under the Labor Standards Act.
In conclusion, starting on January 1, 2022, employees engaging in day/night shifts such as document reception and transfer, answering telephone calls, patrolling business sites, or emergency notifications, contact, or processing outside of normal working hours shall return to being governed by the regulations of the Labor Standards Act. Thus, employers should be prepared for a potential increase in employment-related costs.