August 2019
The Ministry of Labor clarified issues concerning the application of Article 17-1 of the Labor Standards Law (Taiwan)
Alex Liao
The Ministry of Labor issued the Lao-Dong-Guan-Two-1080127025 Circular of June 21, 2019 (hereinafter, the "Circular") to clarify issues concerning the application of Article 17-1 of the Labor Standards Law (hereinafter, the "Law").
Paragraphs 1 and 2 of Article 17-1 of the Labor Standard Law, which came into effect on June 21, 2019, provide: "(Paragraph 1) A requesting organization shall not interview a dispatched worker or otherwise designate any specific dispatched worker before a labor contract is executed between the dispatch business organization and the dispatched worker. (Paragraph 2) In case the requesting organization violates the preceding paragraph when receiving 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..." 」
As previously mentioned, Article 17-1 of the Law provides that beginning with the effective date of June 21, 2019, if a requesting organization has interviewed a dispatched worker or otherwise designated a dispatched worker before a labor contract is executed between the dispatch business organization and the dispatched worker, not only the local competent authority may impose a penalty for violation of Paragraph 1 of the same article but also the dispatched worker may express an intent to the requesting organization to enter into a labor contract if the requesting organization has also received the services performed by the dispatched worker.
However, in case a requesting organization or a dispatched worker is subject to circumstances under Paragraphs 1 and 2 of the same article before the effective date of Article 17-1 of the Law, although the principle of non-retroactivity applies, if the dispatched worker believes that he/she has actual employment relationship with the requesting organization, a civil procedure may still be followed to confirm such relationship as determined by the court based on the facts associated with an individual case.
The Ministry of Labor issued the Lao-Dong-Guan-Two-1080127025 Circular of June 21, 2019 (hereinafter, the "Circular") to clarify issues concerning the application of Article 17-1 of the Labor Standards Law (hereinafter, the "Law").
Paragraphs 1 and 2 of Article 17-1 of the Labor Standard Law, which came into effect on June 21, 2019, provide: "(Paragraph 1) A requesting organization shall not interview a dispatched worker or otherwise designate any specific dispatched worker before a labor contract is executed between the dispatch business organization and the dispatched worker. (Paragraph 2) In case the requesting organization violates the preceding paragraph when receiving 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..." 」
As previously mentioned, Article 17-1 of the Law provides that beginning with the effective date of June 21, 2019, if a requesting organization has interviewed a dispatched worker or otherwise designated a dispatched worker before a labor contract is executed between the dispatch business organization and the dispatched worker, not only the local competent authority may impose a penalty for violation of Paragraph 1 of the same article but also the dispatched worker may express an intent to the requesting organization to enter into a labor contract if the requesting organization has also received the services performed by the dispatched worker.
However, in case a requesting organization or a dispatched worker is subject to circumstances under Paragraphs 1 and 2 of the same article before the effective date of Article 17-1 of the Law, although the principle of non-retroactivity applies, if the dispatched worker believes that he/she has actual employment relationship with the requesting organization, a civil procedure may still be followed to confirm such relationship as determined by the court based on the facts associated with an individual case.
