The prohibition of “harboring foreign nationals for the purpose of work” under Article 44 of the Employment Service Law does not include the behavior of providing services between friends and relatives out of kindness and benevolence or based on relationship involving no compensation or consideration (Taiwan)
2018.4.30
Teresa Huang
The Taipei District Court of Taiwan rendered the 106-Jian-291 Administrative Decision of April 30, 2018 (hereinafter, the “Decision”), holding that the prohibition of “harboring foreign nationals for the purpose of work” under Article 44 of the Employment Service Law does not include the behavior of providing services between friends and relatives out of kindness and benevolence or based on relationship involving no compensation or consideration.
According to the facts underlying this Decision, a Thai woman P was a sister of the Plaintiff’s foreign spouse who stayed in Taiwan with a tourist visa, lived in the Plaintiff’s home, and helped clean up dining tables and dishes at the eatery run by the Plaintiff without charging any compensation or consideration. However, the Defendant found that the Plaintiff had illegally harbored P to engage in work such as cleaning up dishes at the eatery without permission in violation of Article 44 of the Employment Service Law. As a result, a fine of NT$50,000 was imposed in accordance with Article 63, Paragraph 1 of the same law upon the Plaintiff in the original disposition. Dissatisfied, the Plaintiff brought an administrative action pursuant to applicable procedures.
According to this Decision, Article 42 of the Employment Service Law aims at securing the work rights of the citizens. Therefore, hiring foreign nationals for work should not undermine the job opportunities and employment conditions of the citizens, the development of national economy and social stability. This shows that the provisions that restrict the employment of foreign nationals under the Employment Service Law primarily intend to secure the job opportunities of the citizens and avoid lowering the labor terms set by employers in labor contract with domestic workers due to competition with foreign nationals over terms of work. Since Article 44 of the Employment Service Law prohibits any person from providing premises for work performed by foreign nationals for the employer, the definition of work under Article 44 of the Employment Service Law should reference the legislative objectives of the above restriction on employment of foreign nationals and should be interpreted pursuant to the Civil Code, which governs employment contract, and the Labor Standards Law, which governs terms of labor. Under the Civil Code or the Labor Standards Law, when an employee provides services for the employer or a worker is hired by the employer to work, both services and work are performed in exchange for compensation as the consideration. If a foreign national provides services free of charge or without compensation and does not engage in such act as an occupation and does not affect the job opportunities, terms of labor of the citizens or the development of national economy as a result, this does not meet the objective of restricting the employment of foreign nationals under Article 42 of the Employment Service Law. Therefore, the “work” under Article 44 of the Employment Service Law shall mean the act of providing services based on a specific legal relationship between the service provider and the employer and with a relationship of command and supervision. In addition, the service provider should “receive a compensation as a consideration.” This does not include the provision of services through benevolent acts or acts without compensation or consideration between friends and relatives. As to whether a relationship of consideration exists between the provider of premises (employer or non-employer) and a foreign national due to the provision of the premises, this matter is not pertinent. The Defendant’s contention that such article only requires facts of work regardless of any consideration of work is certainly groundless.
Furthermore, according to this Decision, the Lao-Zi-Wai-Zi-0950502128 Circular of February 3, 2006 from the Council of Labor Affairs, which was cited in the decision on administrative appeal, and the Lao-Zi-Wai-Zi-0920010669 Circular of March 11, 2003, which was not cited in the decision on administrative appeal, explained that “work” is not determined formally based on the type of contract or the existence of compensation. If a foreign national in fact provides services or works, even though there is no compensation involved, it is still work. As long as services are provided or there is any fact of work, this still constitutes work with or without compensation. This interpretation is obviously inconsistent with the court’s interpretation of work based on the legal system and goes against the objectives of hiring and managing foreign nationals under the Employment Service Law. Since the court’s hearing of this matter is not bound by such circulars, such circulars do not apply.
It was further concluded in this Decision that P’s behavior was nothing but a benevolent act or an act of providing free services out of kindness to her friends or relatives and was not work under Article 44 of the Employment Service Law. Therefore, the NT$50,000 fine imposed on the Plaintiff under the original disposition was certainly erroneous. The decision on administrative which failed to set aside such disposition was also inappropriate. Since the Plaintiff’s complaint to set aside the original disposition and the decision on administrative appeal was well-grounded, the complaint should be upheld, and a decision was rendered in favor of the Plaintiff.