Controversial guideline granting free labor abolished after 35 years

For 35 years, a guideline issued by the Council of Labor Affairs, the predecessor of the Ministry of Labor, back in 1985, has been a legal foundation for many companies in asking their employees to work overtime without pay. In doing so, it means employees had been forced to work overtime without proper pay, which also led to higher risk of overwork. For decades, labor rights advocates had been asking Taiwan authorities to abolish the guideline. Finally, on March 11, 2019, the Ministry of Labor announced that the guideline will be officially scrapped starting Jan. 1, 2022. The MOL said it made the decision considering the fact that employees are still under supervision of their employers during extra day/night duty.

Service not considered part of working hour

The guideline, officially named the “Important Notes on the Implementation of Extra Day/Night Duty for Employees in Business Entities,” was issued in Dec. 1985.

It contains eight clauses as listed in the following paragraphs:

1. Defines the so-called doing day/night duty outside of regular work as: transfer urgent documents, answer calls, inspect workplaces or to notify personnel and handle affairs in emergencies.

2. Business entities can ask employees to do so after gaining consent from them.

3. The consent can be made via collective bargaining or labor-management meeting.

4. One cannot be asked to work both day and night duty outside regularly working hour in the same day.

5. The allowance for working day/night duty outside regular working hours should be decided by both employer and employee.

6. Business entities should provide proper food, resting place and facilities to employee doing day/night duty outside regular working hours.

7. Business entities should consider an employee’s age, physical fitness and working skill before arranging him or her to the day/night duty shift.

8. Underage workers are not allowed to work both day/night duty, while female workers are not allowed to work night duty.

The guideline further states that extra day/night duty “was not viewed as an extension of normal work, and therefore it was not recognized as falling within the scope of working hours.” Though employees have no obligation to do extra day/night duty unless they agree to do so, for the sake of cooperation, the employees should cooperate with their employers in this regard, says in the guideline. 

The controversial lines in the guideline have made it less likely that an employee can refuse to work extra day night shift. Also, the guideline did not specify the payment for such overtime work, saying only that the amount has to be agreed by both sides. Therefore, given the relatively disadvantage of the employees, it is very likely that they will be asked to work without pay or with very little pay, based on the guideline. The extra working hour, meanwhile, does not included in official working hour either, based on the guideline. 

Revisions after more than three decades 

Following decades-long of protest, on March 11, 2019, the Ministry of Labor finally issued revised version of the guideline:

1. A provision of recommended allowance for day/night shift is added, which is suggested to not be less than the amount of the monthly basic salary divides by 240 and times the hour(s) of day/night shift. 

2. Unless agreed by employees, employers can not ask employees to work day/night duty more than once a week.

3. Unless agreed by employees, employers can not ask employees to work day/night duty more than once a month on their day-off.

4. The rule governing female work on night shift is amended and a provision that the employer shall provide necessary safety and health felicities and measures is added, provided that a female employee is still prohibited from working night shift during pregnancy or nursing period.

The 2019 revisions have set a minimum allowance to workers for day/night shift, and frequencies for such shift, however, MOL still does not consider their service during the day/night shift has part of regular working hours and are not legally required to overtime pay. This allows employers to ask their employees to work under lower cost and has violated basic principles of labor rights protection.

MOL admitted that employees working day/night shift are still under their employers’ control and should considered be part of working hour. However, MOL added that business entities should be given time to adjust to the revision and add more manpower in response. Therefore, MOL also announced that the guideline will only cease to be effective starting Jan. 1, 2022, giving business entities more than one year of time to prepare. This again shows that government has placed more importance on the wellbeing of employers than that of the employees. 

The controversial and unreasonable guideline will finally be abolished starting next year after 35 years. This means all day and night shifts will be falling under the realm of the Labor Standards Act. All overtime will be included in extra working hours and employees’ service during extra hours will be given overtime pay. People who do day/night shift will have to have a minimum 11 hours of rest before the next shift begins. Business entities will also have to follow day-off regulations that at least one day off will be given to employees every seven days. Violators will be given a fine between NT$20,000 to NT$1 million, which provides better protection and more reasonable working hours to employees.