The Ministry of Labor issued the Lao-Dong-Tiao-2-1060131624 Circular of July 28, 2017 (hereinafter, the “Circular”) to explain about the calculation of wages and work hours for a worker agreeing to work on a rest day under Article 36 of the Labor Standards Act (hereinafter, the “LSA”) but experiencing the outbreak of a natural disaster, incident or unforeseen event.
According to the Circular, when a worker should work in case of a natural disaster, safety should be the primary concern. The Council of Labor Affairs promulgated the Guidelines for Attendance Management and Wage Payment by Business Organizations in Case of Natural Disasters to regulate matters relating to the attendance management and wage payment for workers.
Even if a worker has agreed to work on a rest day stipulated under Article 36 of the LSA, if a natural disaster occurs when the local authority over the worker’s work place, residence or the area the worker commutes announces suspension of work in accordance with the Guidelines on Suspension of Work and Classes during Natural Disasters, the worker may stop showing up for work, and the employer shall not consider the worker was absent or late or force the worker to deal with this matter by way of personal leave or other leave. Also, the Employer shall not compel the worker to make up work, withhold full attendance bonuses, have his/her employment terminated or impose any other unfavorable sanction. In addition, since the occurrence of natural disasters is not attributable to workers,if either the employer or the worker who has showed up for work discontinues the work due to safety consideration, the wage and work hours for the time period in which work has been performed shall still be dealt with in accordance with Article 24, Paragraph 2 and 3, as well as Article 36, Paragraph 3 of the LSA.
The Ministry of Labor provided an example. If Worker A has agreed to work on a rest day, the work may be canceled by the worker if local authority announces that office work should be canceled due to a typhoon before the worker goes to work on that day. In comparison, Worker B has shown up for work for three hours on a rest day as agreed before the work in the afternoon is canceled as announced by the local authority due to safety concern, the wage shall still be calculated by the overtime pay for four-hour work on a rest day with four hours included in the total extended work hours for each month.
This Circular also points out that if an employer needs to have a worker work on a rest day under Article 36 of the LSA as a result of a natural disaster, incident or unforeseen event, the labor union shall be notified within 24 hours after the overtime work begins pursuant to the statutory procedure under Article 32, Paragraph 3 of the LSA in order to prevent the employer from deliberately evading the provision concerning overtime hour limit. In the absence of a labor union, the local competent authority shall be reported for reference, and the worker shall be supplemented with appropriate rest opportunities. The attendance wages shall be calculated and paid in accordance with Article 24, Paragraphs 2 and 3 of the LSA. The attendance time shall be governed by the proviso of Article 36, Paragraph 3 of the LSA, and such overtime shall not fall under the maximum 12-hour work day rule or the 46-hour overtime per month rule under Article 32, Paragraph 2 of the LSA.