In the Committee’s 2021 White Paper, we raised the following four proposals:
Adopt more flexible working conditions for high-salary personnel through a sandbox and ensure better benefits for gig workers by codifying the principle of safe harbor for such workers into law;
Count disabled people hired through third-party service providers in calculating the total number of disabled employees at a company; and
Amend the temporary status quo injunction under the Labor Incidents Act to ensure the stability of the Taiwan labor market.
The Committee sincerely thanks the National Development Council (NDC) for its positive response to the above recommendations. We also appreciate the NDC’s indication that they will continue to compile related proposals and opinions as reference material for subsequent review and amendments, and invite AmCham to participate in future discussions on these matters.
While we are happy with the NDC’s response, we would like to see more attention paid to a few issues that impact human resources professionals, companies, and employees. We thus offer the following suggestions for improving the competitiveness of Taiwan’s human resources environment:
Suggestion 1: Enact regulations that differentiate between regular working hours and day/night shift work.
On January 1, 2022, the Ministry of Labor abolished its “Guidelines for Enterprises on Implementing Day/Night Shift Work” (the Guidelines), which had addressed the practice of stipulating in employment agreements that employees are required to perform day or night shift work outside of regular working hours. Given that such shifts are not an extension of the work hours originally agreed upon by the employees (i.e., overtime), relevant regulations should be formulated for employees and employers to comply with.
In practice, the volume and intensity of work performed during day or night shifts are generally lower than work performed during regular working hours, and employees working day or night shifts do not continuously provide services to their employers. The Guidelines demonstrated the MOL’s determination that day or night shifts are not an extension of working hours, and that it is necessary to distinguish such additional work from overtime. Employees and employers long followed the Guidelines, which defined the rights and obligations of both parties under such work arrangements.
Following abolition of the Guidelines, however, the need for employees to perform day/night shift work has continued. Because day/night shift work hours must now be calculated as extended work time and are statutorily capped, employers are experiencing difficulties with human resource scheduling, affecting normal business operations. Some industries experiencing serious labor shortages are even more severely impacted. At the same time, employees are unable to earn additional income by taking on more day/night shifts.
To ensure the smooth growth and development of industry and create a win-win situation for employees and employers, we suggest that the MOL review the relevant regulations and industry needs and establish new rules clearly differentiating day/night shifts from regular working hours.
Suggestion 2: Loosen legal requirements on the maintenance of attendance records for employees.
The COVID-19 pandemic has changed approaches to office-based work, with many companies adopting remote and hybrid work models. International human resources organizations have identified flexibility in employment as one of the key developments of 2022. However, Taiwan’s current Labor Standards Act (LSA), which is based on a rigid “working hours” system, is out of sync with these global employment trends.
Besides the LSA, which requires employers to maintain attendance records for all employees, the MOL has issued the “Guidelines on Employee Working Hours Outside of the Workplace,” which provides that: “The assignment of working hours for teleworkers shall be agreed upon by the employer and the employee and performed in accordance with the agreement. In addition, teleworkers have a high degree of autonomy and are more likely to have the freedom to set their own working hours and rest periods. The actual attendance and exact rest time should be recorded by the workers themselves (e.g., work logs, etc.) on electronic devices (e.g., online registration systems, etc.) and then transmitted to the employer to be recorded.”
However, simply recording remote employees’ attendance does not provide a full picture of their working status. For one, remote work hours are often more flexible and irregular than the traditional start and end times of office-based work. There is thus no way to confirm the exact hours each employee has worked.
Furthermore, employees may forget to log out after finishing their work, resulting in incorrect clock-in/clock- out times. This issue is difficult to control internally and requires that employees spend extra time making corrections. The concept of evaluating work based on the number of hours spent working, a carry-over from the past practice of maintaining records of physical attendance at businesses, no longer meets the needs of today’s enterprises or employees. Businesses are instead beginning to adopt the concept of evaluating the performance of employees working in non-traditional work settings.
The MOL acknowledges that remote arrangements allow for more flexible working hours and the freedom to set working times by enterprises and employees. However, the LSA requirement to maintain attendance records creates challenges for management and difficulties for employees to freely arrange their working hours. It thus does not benefit either party.
In order to promote the competitiveness of enterprises, take into account the practical needs of both employers and employees, and achieve a win-win situation for both parties, we propose that the MOL loosen the rules on attendance records by amending Article 21 of the Enforcement Rules of the Labor Standards Act to add a paragraph 2 as follows: “The attendance records mentioned in the preceding paragraph may also be replaced by other documents that can identify the working hours.” (The original paragraph 2 should thus become paragraph 3.) Such an amendment would lift the constraints of the traditional clock-in/clock-out model and allow for more flexible alternatives. One example could be having employees fill in weekly or monthly work plans and working hour plans. Such alternative approaches could still enable the identification of employees’ working hours while exempting employers from the requirement to keep attendance records for home-based or remote employees.
Suggestion 3: Enable enterprises to meet legal quotas for employing people with disabilities by using recruitment and management services provided by third-party organizations.
Article 38 of the People with Disabilities Rights Protection Act (the Act) requires a private enterprise or institution whose total number of employees is 67 or more to employ people with disabilities who are capable of working. It stipulates that the number of such employees with disabilities shall equal 1% or more of the total number of the employees and constitute at least one person.
Due to staffing controls at multinational enterprises, decisions regarding the appointment and hiring of regular staff tend to be made by foreign head offices, and local subsidiaries may lack the authority to make such decisions. Additionally, enterprises may encounter various difficulties in providing appropriate employment opportunities and professional guidance and management to people with disabilities. Although some enterprises lawfully pay subsidies in lieu of meeting their hiring quota for people with disabilities, the names of such companies are made public, which can impact their reputation.
In recent years, specialized social enterprises have been increasingly active in addressing important social issues. Likewise, multinational enterprises and other large companies are increasingly paying attention to sustainability issues. In this environment, a potentially effective approach would be for employers to engage social enterprises or third-party service institutions to help recruit people with disabilities, provide them with good vocational training, and ensure the creation of professional and friendly working environments. This cooperative new model would allow multinational companies to provide more job opportunities to people with disabilities and help businesses fulfill their obligation to contribute to society.
Given the changing employment environment in Taiwan and globally, we recommend amending the Act or introducing related administrative regulations and guidance to permit companies to, in addition to making direct hires of people with disabilities, meet their legal hiring requirements through cooperation with third-party social enterprises. This can be accomplished by providing companies with the option of offsetting their legal hiring quotas by funding the employment of people with disabilities by third-party social enterprises. Doing so would help social enterprises increase their client pool, create more full-time job opportunities for people with disabilities, and encourage multinational enterprises to help create more employment opportunities for people with disabilities at social enterprises. It would thus further the government’s policy of caring for citizens with disabilities, thereby benefiting all relevant stakeholders.