2019.7.21
Teresa Huang
According to statistics released by the Workforce Development Agency of the Ministry of Labor on the status of foreign professionals and industry and social welfare foreign workers lawfully receiving employment permission for their work in Taiwan, there were approximately more than 730,000 foreign nationals working in Taiwan as of the end of May 2019.[1] In addition to foreign nationals visiting Taiwan for work, the number of foreign nationals visiting Taiwan for education and sight-seeking is also gradually rising, creating a stronger atmosphere of internationalization in the Taiwan society with increasingly frequent and close exchanges between the Taiwanese and foreign nationals or even among foreign nationals.
To safeguard the working rights of the citizens of this country, Articles 42 through Article 44 of the Employment Service Act specifically provide that the employment of foreign nationals shall not undermine the job opportunities of the citizens of this country, terms of labor, the development of national economy and social stability. Except as otherwise stipulated by such law, no foreign national is permitted to work within the Republic of China without a permit applied by the employer. In addition, no one is allowed to harbor foreign nationals for work. This poses less of an issue to foreign nationals who have established formal employment relations with enterprises in Taiwan. However, in case of foreign nationals who have not established formal employment relations in Taiwan or obtained corresponding compensation or have only provided services on the surface, whether it is necessary to prohibit them from providing any form of service in Taiwan pursuant to law depends on how the definition of “harboring foreign nationals for work” under Article 44 of the Employment Service Act is interpreted.
Pursuant to the Lao-Zhi-Wai-0910205655 Circular of the Council of Labor Affairs, the predecessor of the Ministry of Labor before its reorganization, labor authorities always interpret the requirement that “no one is allowed to harbor foreign nationals for work” refers to the factual behavior that a “natural person or juristic person” who has no employment relations with foreign nationals allows the foreign nationals to stay in certain premises to provide services or to work without applying for permission in accordance with the Employment Service Act and related laws and regulations. In addition, pursuant to the Lao-Zhi-Wai-0950502128 of February 3, 2006 from the Council of Labor Affairs, the so-called “work” is not determined by the existence of a formal contract or of compensation. If a foreign national factually provides services or works, this still constitutes work even without compensation. However, in view of globalization and changes in the spatial and temporal environment of the economy and society, types of acts engaged by foreign nationals in relation to society, economics and culture have increasingly been diversified. In addition, to attract foreign nationals to engage in diversified exchanges in Taiwan, the Ministry of Labor specifically enumerated several types of behavior in its Lao-Dong-Fa-Guan-1070507378 of November 27, 2018, including business acts, internships or studies, auxiliary services, general friendship activities or other activities which do not intend to provide services to anyone in this country and do not undermine the job opportunities for the citizens of this country. If such circumstances are met, such acts do not fall within the scope of “work,” which requires an application for permission. For acts not included on the enumerated list, determination should still be made pursuant to the above Lao-Zhi-Wai-0950502128 Circular and the facts of individual cases. According to the most up-to-date circulars mentioned above, labor authorities having recognized the irreversible trend of increased global exchanges have appropriately reduced the controlled service types to avoid inappropriate interference in general social, economic and social exchanges.
With respect to practical court opinions, the Taipei High Administrative Court held in its 107-Jian-Shang-128 Decision as follows: The “illegal harboring of foreign nationals for work” under Article 44 of the Employment Service Act” should refer to the factual behavior of allowing foreign nationals to stay in the premises to provide services or to work in the absence of employment relations with such foreign nationals and without any application for permission pursuant to the Employment Service Act and other relevant laws and regulations. Therefore, the harboring of foreign nationals and the provision of services (regardless of the harboring duration) per se are sufficient for penalty under such article. In addition, the parties engaging in such harboring (natural persons or juristic persons) are the objects of penalty, regardless of the motives and considerations, if any, for a foreign national’s provision of services. In addition, with respect to the prohibition against illegal work performed by foreign nationals under the Employment Service Act, the so-called “work” should meet the above-mentioned legislative objectives, i.e., harboring foreign nationals to provide services, and does not intend to limit dealings and interactions between ordinary citizens and foreign nationals as friends and relatives. Therefore, it is not true that the appearance of services provided by foreign nationals will exclusively lead to the conclusion that such services fall within the scope of the restrictive administration under the Employment Service Act. The above decision reverted to the gist of legislative objectives when interpreting the scope of prohibition under Article 44 of the Employment Service Act and further held that the foreign national’s act of putting away dishes, bowls and chopsticks in a restaurant for his relatives was merely a benevolent act for his relatives, and it was hardly appropriate to conclude that such foreign national’s act of putting away dishes, bowls and chopsticks in a restaurant for his relatives supports that his relatives engaged in an act of harboring such foreign national for work. In addition, a similar view can be found in the 103-Jian-72 Administrative Decision of the Taoyuan District Court, which held that although the foreign national who helped, out of friendship, give change back to customers in an eatery run by his friend without compensation provided a form of service, still the provision of such service is a benevolent act for his friend, and such occasional and proactive act of the foreign national is not an act of work foreign nationals are prohibited to engage in under the Employment Service Act. Therefore, it certainly requires no permission and does not constitute a violation involving the “harboring of foreign nationals for work” under Article 44 of the Employment Service Act. Based on the foregoing reasons, the courts are inclined to view that benevolent acts without compensation engaged by foreign nationals for their friends and relatives in Taiwan do not constitute a violation of Article 44 of the Employment Service Act.
However, with respect to the circumstances where a foreign national alleges that free trial work is performed for a specific natural person or juristic person to prove his/her work ability in order to find a job, both labor authorities (e.g., the Lao-Dong-Fa-Su-1070021716 Decision on Administrative Appeal from the Ministry of Labor) and the courts (e.g., the 95-Jian-00562 Decision of the Taipei High Administrative Court) held that since such specific natural person or juristic person is obviously aware of and permits the act of a foreign national to stay in the work location of the natural person or juristic person to provide services or to perform work, which should be stopped but is not, and is passively tolerant of such matter, Article 44 of the Employment Service Act is violated.
With respect to the prohibition against the above free trial work performed by foreign nationals, imposing restrictions indeed may potentially safeguard potential job opportunities and thus is necessary. However, a more common scenario in practice is that enterprises need to introduce foreign nationals to address labor shortages since the citizens are not willing to engage in a particular category of work at all because of relatively inferior work environment. For enterprises in dire need of foreign workers, how to find appropriate and competent foreign workers to an extent permitted under existing laws and regulations as well as practical views without being found in violation of Article 44 of the Employment Service Act concerning “illegal harboring of foreign nationals for work” is a challenge in practical operations. Although some may perceive that if occasional trial work by foreign nationals is allowed, this will be abused, wiping out incentives or demands for enterprises to seek local workers and indirectly infringing the working rights of the citizens. However, the current practical view is that free trial work should be banned across the board, regardless of the industry category or of details of specific positions. There appears to be room and necessity to further consider whether the interpretation in favor of such prohibition or restriction is indeed necessary and appropriate and whether it is excessive in comparison with the restriction on an enterprise’s freedom to choose workers.
[1] Table 12-12: Foreign Professionals by Approving Agencies and Nationalities; website of the Workforce Development Agency: https://statdb.mol.gov.tw/html/mon/212120.htm (last viewed on July 11, 2019); and Table 12-4: Number of Industry and Social Welfare Foreign Workers by Industry and Nationalities; website of the Workforce Development Agency: https://statdb.mol.gov.tw/html/mon/212040.htm (last viewed on July 11, 2019).