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KEY DEVELOPMENTS FOR 2023

Employment policies in relation to COVID-19

According to an announcement of the Ministry of Labor, an employer cannot require its employees to take COVID vaccinations, provide negative PCR test reports, etc. except for in a limited number of industries on which the Taiwan Centers for Disease Control has imposed relevant requirements (such as nursing homes and kindergartens). Moreover, refusing to get a COVID vaccination cannot constitute a statutory reason to terminate employment in Taiwan, and thus an employer is also not permitted to terminate an employee or impose any penalty because its employee has refused to be vaccinated for COVID or take PCR tests.

In addition, the Ministry of Labor has issued several letters stating that, if an employee is diagnosed with COVID and asks for sick leave, the employer should not refuse to pay full-attendance bonus to such employee.

Beginning from 1 December 2021, employers are also required to purchase COVID medical insurance for incoming foreign blue-collar workers (i.e., migrant workers) before they enter Taiwan, or such workers would be banned from entry. The employers are required to pay the full cost of the insurance premiums.

Lastly, Taiwan’s epidemic prevention and isolation requirements have been gradually eased. The entry quarantine and the cap on the number of people entering Taiwan was cancelled respectively on 13 October 2022, and 10 December 2022. Starting from 14 November 2022, patients are required to stay in quarantine for a reduced duration of five days only.

Labor Occupational Accident Insurance and Protection Act (the “LOAIPA”) has taken effect on 1 May 2022

Originally, according to Labor Insurance Act, only employees employed by a company or firm with more than five employees should enroll in the government’s labor insurance, resulting in many employees being outside the protection of labor insurance in the event of occupational accidents.

To resolve this issue, LOAIPA was promulgated and has taken effect on 1 May 2022. According to LOAIPA, regardless of the number of employees, all employers shall insure their employees aged 15 or more under labor occupational accident insurance and pay the insurance premium in full. At present, the average insurance premium rate is 0.20% of the monthly insured wages of an employee.

It should be noted that if an employer fails to purchase labor occupational accident insurance for its employees, it will face a fine of NT$20,000~100,000 and may be fined for each such violation found. The competent authority will also publish the name and the name of the representative of such employer.

The relationship between a food delivery platform and its deliver staff has been determined by the court to be a labor contract. The delivery drivers/riders is deemed as a laborer under the Labor Standards Act.

According to Taipei High Administrative Court 2020 Su Tzu No. 1046 Judgement, the contract between Uber Eats and its delivery drivers/riders is an “employment relationship” for reasons set out below. Uber Eats, therefore, should abide by Taiwan’s labor laws and relevant regulations.

1. The contract mainly asks for provision of labor services from delivery drivers/riders, and Uber Eats requires them to deliver food in person.

2. A personal subordination relationship exists between Uber Eats and delivery drivers/riders.

   A delivery driver/rider must follow detailed specifications of Uber Eats and cannot make independent decisions on how their services should be performed. Uber Eats also has right to suspend accounts and deduct rewards of their delivery drivers/riders, as a punishment, if multiple wrong delivery records are found. All these indicate that Uber Eats has power to impose disciplinary actions against the delivery drivers/riders.

3. An economic subordination relationship exists between Uber Eats and delivery drivers/riders. The salary of a delivery driver/rider depends on each food delivery service he or she provides. The calculation standard and payment amount, however, are determined by Uber Eats, who is the one bearing the relevant financial risks.

4. An organizational subordination relationship exists between Uber Eats and delivery drivers/riders.

   In couriering food, the delivery driver/rider represents the Uber Eats brand only instead of his or her own character, and must work with other Uber Eats personnel to complete the delivery work.

As the so called “gig” economy is emerging and growing rapidly, delivery platforms and other similar sharing platforms with the above-mentioned characteristics should pay attention to the relevant regulations and requirements of Taiwan’s labor legislation to avoid breaching the law.

KEY DEVELOPMENTS FOR 2020

Principal drivers for legal and business activity

There are two principal drivers for legal and business activity in Taiwan in 2020. The first is the continuing U.S. China 'cold trade war', which has been observed since 2018 and continues to expand. The cold trade war has benefitted Taiwan due to the country's place in global supply chains, which has meant that both U.S. and Chinese companies are seeking out Taiwan partners to do business. The second driver is the COVID-19 pandemic. Taiwan successfully contained COVID-19's initial outbreak without the need to lock down its schools and businesses. Taiwan's GDP grew by 1.54% in the first quarter of 2020 and is expected to continue to experience more growth. Overall, Taiwan's unemployment rates have remained stable and Taiwan's current stimulus package is modest (in comparison to the rest of the world), accounting for only 5.4% of GDP.

Outbound investments

As Taiwan companies, venture capital funds, and private equity funds have reduced their domestic portfolios, outbound investments into Japan, Europe and the United States have recently picked up. Commercial banks in Taiwan are also increasingly willing to lend to Taiwanese companies and funds investing outside of Taiwan. The Taiwan National Development Fund (the main Taiwan sovereign fund investing in alternative assets) has also shown much more flexibility and willingness to co-invest in large projects that are led by Taiwanese public companies.

Relative political stability and anti-PRC sentiment

Recent world events, including the COVID-19 pandemic, have enabled the pro-independence, pan-Green coalition to consolidate power with greater support from Taiwanese voters. As a result, there is greater scrutiny of Chinese acquisitions of Taiwanese companies. With fewer deep-pocketed Chinese companies able to purchase companies in Taiwan, this creates opportunities for Japanese, U.S. and European companies to invest at a potentially cheaper cost and access cheap Taiwan credit markets.

KEY DEVELOPMENTS FOR 2019

Changes to labour dispute resolution

The Labour Procedure Act (“LPA”) was approved on 9 November 2018, and is expected to take effect in 2019. The LPA establishes a general principle that mediation proceedings shall be concluded in three oral-argument sessions within three months, and litigation proceedings shall be concluded in one oral-argument session within six months in the court of first instance.

Other key features of the LPA include:

• a specialised tribunal or unit in every Court to handle labour disputes, with experienced Labour judges and mediators;
• disputes arising from cooperative education are covered under the LPA;
• enhancing access to justice for employees by removing some of the barriers to justice (e.g. providing the employees with broader choices of venue for dispute resolution with respect to labour matters) and providing them with the right to appear with an assistant during a court session; and
• a cap on security for costs payment at no more than one-tenth of the amount of the claim. However if the employee can show such payment would seriously affect his or her livelihood, the court may discharge this requirement.

Expansion of online services for parental leave applicants

Since 12 November 2018, applicants for parental leave allowances are able to submit documents online. Applicants can also apply through their employer if their employer is registered with the online service of the Bureau of Labour Insurance of Taiwan (“BOLI”). This was previously excluded due to the requirements that certain documents were required to be certified and submitted in paper form, which led to a number of complaints.

Resident doctors under the Protection of Labor Standards Act

Ministry of Labor, Republic of China, announced on 30 November 2018 that the Labor Standards Act will apply to all resident doctors from 1 September 2019. Resident doctors will enjoy the protection of compensation for occupational injury and retirement pension.

However, given the specialty and professionalism of the work performed by resident doctors, their relevant working hours and holidays may still be agreed with the hospitals. The application will not apply to visiting staff (attending physicians) with greater autonomy or resident doctors in public hospitals.

KEY DEVELOPMENTS FOR 2018

Further Amendments to Taiwan’s Labour Standards Act

An amendment to the Taiwan’s Labor Standards Act (the “Prior Law”) will come into effect on March 1, 2018 (the “Amendment”). The key points of the Amendment are as follows:

Change in calculation of wages for working on a rest day

Under the Prior Law, when calculating overtime wages for working on a rest day, work for 4 hours or less was counted as 4 hours, and work between 4 to 8 hours was counted as 8 hours. The Amendment has amended this provision so that the overtime wage for working on a rest day shall be based on the worker’s actual working hours.

Increase in maximum permitted overtime

Under the Prior Law, the maximum overtime for a worker was no more than 46 hours per month. Under the Amendment, the maximum overtime for a worker has been increased to 54 hours with the consent of a labor union or with the approval of the labor-management conference, provided that the total overtime shall not exceed 138 hours for a period of three months. Under such circumstances, the employer may elect, with such worker’s consent, to provide such worker with wages or compensatory time off for the overtime.

In addition, the Supreme Administrative Court recently clarified the concept of “overtime” and ruled that any worker who works on non-working time or on a rest day shall be regarded as working overtime.

Decrease in minimum rest period for working shifts

Under the Prior Law, a worker was entitled to have at least 2 days off for every 7 days worked, provided that the 2 days off were divided into 1 regular day off and 1 recess day. The Amendment has changed the relevant provisions and now provides that an employer in specific industries may be entitled to adjust the regular day off and recess day during such 7-day-cycle with the consent of the competent authority in charge of the relevant enterprise. Employer may provide an 8-hour rest period as opposed to 11 under previous legislation with the consent of a labor union or with the approval of the labor-management conference.

Unused annual paid leave may be postponed for 1 year

Unused annual paid leave may now be postponed until the end of the following year, and such annual paid leave shall not be paid out as wages unless the worker does not use the leave in the following year.