Teresa Huang
The President promulgated the amendments to Articles 63 and 78 of the Labor Standards Act (hereinafter, the “Act”) and the addition of Articles 17-1 and 63-1 via the President Hua-Zhong-One-Yi-10800060011 Decree of June 19, 2019 to safeguard the rights and interests of dispatched workers. The amendments are highlighted below:
Firstly, Article 17-1, Paragraphs 1 through 3 of this Act are added to specifically provide for matters concerning the specific conditions under which a dispatched worker may request to formulate a labor contract directly with the requesting organization. The requesting organization shall not engage in acts such as interviewing a dispatched worker or otherwise designating any specific dispatched worker before a labor contract is executed between the dispatch business organization and the dispatched worker. In case of violation and of receipt of services performed by a dispatched worker, the dispatched worker may indicate an intent in writing to the requesting organization to enter into a labor contract within 90 days after such services are provided to the requesting organization. The requesting organization shall negotiate a labor contract with the dispatched worker within 10 days after his/her indication of the intent is received. If such negotiation is not conducted or is not successful within such period, the parties shall be deemed to have established a labor contract on the day following the expiration of such period, and the terms of labor for the dispatched worker during his/her work at the requesting organization shall be used as the contents of the labor contract.
Secondly, Article 17-1, Paragraphs 6 and 7 of the Act are added to provide that if a dispatched worker and the requesting organization enter into a labor contract, the labor contract between the dispatched worker and the dispatch business organization shall be deemed terminated without any liability for violating the covenant on the minimum service period or training cost refund. In addition, the dispatch business organization shall pay pension or severance pay to the dispatched worker based on the payment standard and period under the Act or the Labor Pension Act. In case of violation, a fine of NT$300,000 to NT$1,500,000 may be imposed pursuant to Article 78, Paragraph 1 of the Act along with a deadline for such payment. For failure to make such payment, penalties shall be continuously imposed for each incidence of violation.
Thirdly, Article 17-1, Paragraphs 4 and 5 of the Act are added to provide that a dispatch business organization and a requesting organization shall not lay off or demote a dispatched worker, reduce his/her salary, or undermine his/her legitimate rights and interests under laws and regulations, contract or conventions or take other unfavorable measures because the dispatched worker has indicated his/her above-mentioned intent to enter into a labor contract directly with the requesting organization; and if similar acts are engaged, they shall be invalid. In addition, a fine of NT$90,000 to NT$450,000 will be imposed in accordance with Article 78, Paragraph 2 of the Act.
Fourthly, Article 63-1 of the Act is added to provide that in case of any occupational accident to a dispatched worker used by a requesting organization, the requesting organization and the dispatch business organization shall jointly and severally assume the employer’s liability for occupational accident compensation under Chapter VII of the Act. If the compensation has been compensated by the requesting organization or the dispatch business organization pursuant to the Labor Insurance Act or other laws and regulations, an offset may be claimed. If a dispatched worker is subject to an occupational accident due to violation of the Act or relevant safety and sanitation requirements by the requesting organization or the dispatch business organization, the requesting organization or the dispatch business organization shall be jointly and severally liable. The amount of compensation paid by the requesting organization or the dispatch business organization pursuant to the Act may be offset against the amount of compensation for the damage incurred in the same accident.