The Taipei High Administrative Court rendered the 105-Su-1634 Decision of March 30, 2017 (hereinafter, the “Decision”), holding that the impairment of the citizens’ employment opportunities under the Employment Service Law means that an employer who lays off local workers and hires foreign nationals fails to inquire about the willingness of the laid-off workers to engage in the work assigned to such foreign nationals or refuses to employ willing workers after such inquiry.
According to the facts underlying this Decision, the Plaintiff previously received the Defendant’s approval to recruit three foreign nationals again and received an approval to employ two Vietnamese workers. The Defendant found that the Plaintiff subsequently laid off two domestic workers but still continued to recruit foreign nationals. The Plaintiff was required by the Defendant to ask about the willingness of the laid-off domestic workers within a stated period. Although the Plaintiff asked the laid-off domestic workers if they were willing to engage in the work assigned to foreign nationals, still a laid-off domestic worker who was willing to engage in the work assigned to foreign nationals was not hired back. Therefore, the Defendant held the Plaintiff violated Article 42 of the Employment Service Law and revoked the original approval which allowed the Plaintiff to recruit one foreign national and the original approval to employ foreign nationals via the original disposition. The Defendant also demanded such foreign national to be transferred to another employer or to leave Taiwan after the Plaintiff completes the formalities for the departure within 14 days upon receipt of the notification. Dissatisfied, the Plaintiff brought administrative action.
According to the Decision, the Lao-Dong-Fa-Guan-10318098421 Circular of March 10, 2015 from the Ministry of Labor indicates that the “impairment of the citizens’ employment opportunities” under Article 42 of the Employment Service Law means an employer that lays off domestic workers or causes a dispatching business unit to terminate the labor contract with domestic dispatched workers for certain reasons fails to inquire about their willingness by offering reasonable terms of labor or to inquire about the willingness of the laid off domestic workers or domestic dispatched workers whose employment contract is terminated to engage in the work assigned to foreign nationals within the required period or refuses to hire domestic workers or domestic dispatched workers willing to engage in work assigned to foreign nationals after such inquiry. Since this violates Article 42 and Article 57, Subparagraph 9 of the Employment Service Law, according to Article 72, Subparagraph 2 of the Employment Service Law, the recruitment approval and employment approval which stipulate the number of foreign nationals that the employer is allowed to hire should be revoked on a one-to-one proportion based on the number of domestic workers involved in the employer’s violation and the number of foreign nationals whose approval should be revoked.
It was further pointed out in this Decision that one of the laid-off domestic workers had filled out the work intention survey form and indicated the willingness to assume the work assigned to foreign nationals. However, the Plaintiff refused to hire back such laid-off domestic worker to engage in the work assigned to foreign nationals. Since this undermined the citizens’ employment opportunities in violation of Article 42 of the Employment Service Law, the original disposition was not illegal and the Plaintiff’s complaint was dismissed.