2018.1.26
Melanie Lo and Yi-Shan Cheng
Your boss may appear in the office through 3D holographic projection and ask his robot assistant to buy him a coffee. This may very well be a common office scene in the future. Already there have been ministers without portfolio of the Executive Yuan who are currently teleworking. According to news coverage [1] by the Economic Daily News, Minister Audrey Tang telecommutes two days a week when she does not enter her office. Exactly how can time cards be punched to calculate the work hours of telework? A minister without portfolio is not required to clock in and out, therefore, Audrey Tang does not need to worry about clocking in or out. However, telework is going to be a significant issue if it is going to be implemented under the current Labor Standards Law.
Legal challenges facing telework – a breakaway from “fixed work hours” and “fixed work locations”
Workers gathering together in the office premises required by the employer to work for a fixed period of time during the day is a traditional work pattern. Thanks to the advancement of the Internet and remote transmission technologies in recent years, a lot of works can be done outside of the office. Coupled with issues such as the balance between family and work due to the impact of low birth rates as well as air pollution from motor vehicles used every day by commuters, people have begun to ponder the probability of working outside of fixed office premises.
Through telework, employees can work anywhere for global employers, while employers can also hire employees from all over the world. Telework brings more free disposable time to employees to reduce their work pressure and allow them to work at home, take care of their elderly and children and balance their work life and family life. As a result, employees’ productivity is also greatly enhanced. In this fashion, a considerable amount of commuting time and transportation fuels can be saved and green gas emission from motor vehicles can be reduced each day. In spite of plenty of advantages in telework, there are still certain legal challenges for its implementation. Traditional labor laws and regulations are designed for traditional work patterns. Therefore, when telework breaks away from the three pillars of the traditional labor welfare system, namely, “fixed employers,” “fixed work hours” and “fixed work locations,” and blurs the boundaries between private and work domains, certain impact will be created, causing issues such as the determination of labor benefits and work time. For example, the method for recording work time by punching time cards will have to be adjusted, not to mention other corresponding needs to determine extended work hours (overtime) and overtime pay, absenteeism, sick leave allowances, labor safety and sanitation in work premises, employer’s liabilities, etc. Taiwan is not the only country that faces such issues. The labor laws and regulations in many other countries are also facing an impact from demands for telework. We will first consider the legislative trends in the United States and the European Union below before revisiting the situation in Taiwan.
Telework Enhancement Act of the U.S.
The Telework Enhancement Act of 2010 was adopted in the U.S. [2] where the federal government was provided a legal basis through a dedicated law to implement telework arrangements for federal employees. Currently, this law has been included in Part III of Title 5 of the United States Code. Section 6501 defines telework as “a work flexibility arrangement under which an employee performs the duties and responsibilities of such employee’s position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work.” Section 6502 provides that a federal administrative agency that formulates capability requirements, work rules and a code of ethics in the workplace shall enter into a written telework agreement with the employees. Section 6503 requires a federal administrative agency to ensure that employees who telework have received and passed relevant training. Section 6504 requires that relevant policy guidance shall be provided by the Office of Personnel Management. The US Office of Personnel Management promulgated the Guide to Telework in the Federal Government pursuant to law in 2011, indicating that the federal telework policy recommends that a telework agreement shall be concise and easy to understand and specify the responsibilities and expected outcome. The provisions of such agreement may include, for instance, the term of agreement, work type, work schedule, work requirements, and expectation such as work location, method of communications, equipment and cost, information security, and termination and modification of the agreement. Compared with traditional labor law, the Telework Enhancement Act offers more choices and flexibility in that it will suffice to specify the work time and work location in a written agreement. Overtime or extended work time only require stipulation in a written contract or monitoring via electronic equipment with the determination of labor benefits such as work time and overtime not different from that under traditional labor law, and specific industries are not excluded from the application of the Telework Enhancement Act.
EU Telework Framework Agreement
The European Union adopted a framework structure by executing the Framework Agreement on Telework, which is not substantively binding, in 2002 [3] for legislative reference of the member states. The framework defines telework as “a form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employers’ premises, is carried out away from those premises on a regular basis.” The Framework Agreement on Telework primarily stipulates the following: telework shall be voluntarily agreed between the employer and the employee; telework merely pertains to work pattern changes without affecting the status of a telework employee; if the employee refuses to switch to telework, this shall not become the employer’s reason for terminating the employment relationship or changing the terms of labor; if the condition of telework as practiced is different from the initial agreement, such work pattern may be changed through individual consent or collective bargaining; and teleworkers shall have the same rights as workers in the corporate workplace. An employer shall be responsible for the following matters: (1) formulation of an agreement on telework in writing; (2) data protection; (3) provision, installation and maintenance of work equipment; (4) costs associated with telework; (5) provision of appropriate electronic and communications equipment; (6) labor health and safety; and (7) provision of education and training identical to those provided to workers providing services in workplaces provided by the employer.
The Framework Agreement on Telework does not limit the applicable industries, even though it points out that these industries are primarily those requiring more professional skills. The work location requirements are similar to those in the U.S. in that specification in a written agreement will suffice. The work time is arranged by the teleworker and the company within the framework of laws and regulations and under the system of collective bargaining and corporate rules. As for overtime or extended work hours, they are stipulated by written contract or monitored via electronic equipment. As for the requirements and standards for workloads, they are the same as those for individuals working in workplaces provided by their employers. An employer is required to take appropriate measures to prevent teleworkers from isolation from other workers who work in workplaces.
Current situation in Taiwan
The Guiding Principles for Work Hours of Employees Accumulated Outside of Workplaces promulgated by the Ministry of Labor via the Lao-Dong-Three-1040130706 Circular of May 6, 2015 are the current mechanisms for dealing with telework in Taiwan. Currently applicable industries are limited to news and media workers, teleworkers, field sales personnel, car drivers and those who usually work outside, who may be included in such guiding principles by the competent authority.
With respect to the determination of work time, an employer is required under current requirements to prepare an attendance book or punch cards for workers to record the everyday service status of the workers (Article 30 of the Labor Standards Law). However, since it is difficult for an employer to control the working and resting time of teleworkers, the guiding principles require, instead, the employer and the employee to agree to and perform the working time (the determination of regular working time and extended working time (overtime) as well as rest time) in advance. As for the actual working and resting time of workers, they are not merely determined by the attendance book or punch cards and can be facilitated by computer information or electronic communications equipment where the workers may record on their own or through electronic equipment before transmission to their employer for record-keeping purposes.
With respect to extended working time (overtime), the current requirement is that employers who need to have their workers work beyond their regular work time may extend their work time (overtime) after following statutory procedures with the aggregate of overtime and regular work hours not exceeding 12 hours per day (Article 32 of the Labor Standards Law). However, since the work pattern of teleworkers is special and it is difficult for the employer to control or object to extended work time of workers, the guiding principles require a teleworker to make prior application or agreement if work cannot be completed without going overtime, and after the work is completed, the worker should report and electronically transmit the actual overtime hours to the employer for record-keeping purposes. If the employer asked a worker to work overtime through communications software, by telephone or through other means, the worker may record the beginning and ending time of the work on his/her own and deliver the same along with dialogues, communications records or document completion and delivery records to the employer, who is then required to promptly supplement the work time records.
With respect to workplace safety, the current requirement is that employers shall provide essential safety and sanitation facilities and follow statutory procedures before they may require female workers to work at night. In addition, the safety and sanitation facilities provided by an employer shall meet the “essential safety and sanitation facility standards for nighttime workplaces where female workers are hired to work” (Article 49 of the Labor Standards Law). However, since most teleworkers do not provide services in premises designated by the employer, how can the employer provide essential safety and sanitation facilities for the workers? The Ministry of Labor modified and promulgated on March 31, 2015 the Standards for Essential Safety and Sanitation Facilities for Nighttime Workplaces of Female Workers Hired by Business Entities, which require an employer to identify danger and risks in advance, inform workers of hazardous factors in the work environment, formulate protective measures and conduct safety and sanitation education and training for workers. If necessary, personal protection equipment should be provided to safeguard the rights and interests of teleworkers.
As for sexual harassment prevention in workplaces, the current requirement is that an employer is obligated to prevent sexual harassment in workplaces and to take immediately effective corrective and remedial measures upon knowledge of sexual harassment in workplaces under the Law of Gender Equality in Employment (Article 13 of the Law of Gender Equality in Employment). However, when teleworkers work in the premises they choose, e.g., convenience stores, cafes, fast food stores, etc., if they are sexually harassed by others, since such locations are not controlled by the employers, how can they take preventive measures in advance and remedial measures after the fact? The Ministry of Labor amended and promulgated on March 31, 2015 the Standards for Essential Safety and Sanitation Facilities for Nighttime Workplaces of Female Workers Hired by Business Entities, which require an employer to identify danger and risks in advance, inform workers of hazardous factors in the work environment, formulate protective measures and conduct safety and sanitation education and training for workers. If necessary, personal protection equipment should be provided to safeguard the rights and interests of teleworkers.
In addition, when telework allows employers in Taiwan to hire workers from all over the world, current work permit system under the Employment Service Law will definitely have to be adjusted. What labor benefits and labor insurance can teleworking foreign workers enjoy? What about the National Health Insurance? Will the Labor Standards Law in Taiwan or the local labor law of the employees apply to the labor relationship? Conversely, when workers in Taiwan are hired as teleworkers by global employers, does the Labor Standards Law apply to the protection of the Taiwan workers? From the perspective of administration, the inability of the labor authority in Taiwan to regulate foreign employers will pose a major issue in reality. All these issues require further legislative exploration to come up with solutions.
References
[1] http://insight.udndata.com/ndapp/udntag/finance/Article?origid=8539121
[2] https://blogdoteletrabalho.wordpress.com/2013/07/21/em-2010-o-presidente-barack-obama-assinou-o-telework-enhancement-act/
[3] https://www.etuc.org/framework-agreement-telework