活動快報

內容：

Letter from the Ministry of Labor
Address: 4th Floor, South Building, No. 439, Zhongping Road, Xinzhuang District, New Taipei City 24219
Case manager: Huizai Huang
Tel: 02-8995 6185
Fax: 02-8995 6198
E-mail: L7200016@wda.gov.tw
Date: 25 October 2019
Reference number: Lao-Dong-Fa-Guan-Zi No.1080507452
Speed: Normal
Confidentiality level and declassification conditions or confidentiality period:

Attachment: As mentioned in Subject matter
Subject matter: We submit the Principles for handling foreign worker’s pregnancy and subsequent worker’s rights and interests during employment for your kind attention.
Details:　

1. This letter is sent to execute the decision passed on 19 July 2019 at the 36th meeting of the Presidential Office Human Rights Consultative Committee pursuant to letter Hua-Zong-Zi No. 10800079990 of 12 August 2019 from the Office of the President.

2. Relevant laws and regulations:

(1) Article 11 of the Act of Gender Equality in Employment stipulates that “employers shall not
discriminate against employees because of their gender or sexual orientation in the case of retirement, discharge, severance and termination.” Work rules, labor contracts, or collective agreements cannot stipulate or prescribe that an employee who marries, becomes pregnant, delivers an infant, or raises a child, must resign or be suspended without salary, nor can any such event be a ground for termination.

(2) Article 73, paragraph 3, and Article 74 of the Employment Service Act (the “Act”) stipulate that if the employment is terminated, “the employment permit therefore shall be annulled” and the employee “shall be immediately ordered to depart from the Republic of Taiwan and be barred from further engaging in work in the said territory.” Article 45, paragraph 2, of the Regulations on the Permission and Administration of the Employment of Foreign Workers (the “Regulations”) stipulates that “where an employed type B foreign worker departs from the Republic of China within the validity of the employment permission as a result of the termination of employment, the employer shall notify the local competent authority prior to his/her departure, and the local competent authority shall investigate and verify the real intention of the foreign worker (“contract termination verification”).

(3) Article 58, paragraphs 1 and 2 of the Act and Article 20, paragraph 4 of the Regulations stipulate that “where a foreign worker has departed from the Republic of China (....) during the term of the employment permit, the employer may apply to the Central Competent Authority for replacement thereof .” “Departure for the foreign worker postponed due to judicial custody, penalty, major disease or injuries or other reasons not attributable to the employer, shall be specially approved by central competent authority,” and “the employer may introduce or employ” a new foreign worker. Article 44 of the Regulations stipulate that “no foreign worker is allowed to bring along with his/her family to stay for residence, unless the employed female foreign worker or the spouse of the employed male foreign worker gives birth to offspring in the Republic of China during the term of employment and is able to maintain their life.”

(4) Article 59 of the Act and Article 11 of the Directions of the Employment Transfer Regulations and Employment Qualifications for Foreigners Engaging in the Jobs Specified in Items 8 to 11, Paragraph 1, Article 46 of the Employment Services Act (the “Transfer Directions”) stipulate that the employer must process the transfer within sixty (60) days from this Ministry’s permission to change employer or work. But for those foreigners possessing special situation that have been approved by the Central Competent Authority, operation of foreigners' transferring may be extended to sixty days and for once only.

3. To protect employers’ and foreign workers' rights and interests, the employment of pregnant women during their term of employment and their subsequent worker’s rights and interests must be handled in accordance with the following provisions:

(1) It is prohibited to unilaterally terminate employment: When a foreign worker is pregnant, delivers an infant, etc. the employer cannot use such matters as grounds for terminating the employment relationship. If an employer [intends to] forcibly repatriate a foreign worker, the foreign worker may file a complaint with the local government through the 1955 Counseling and Protection Hotline for Foreign Workers. When a local government receives a request from an employer to allow termination of an employment relationship, it must contact the foreign worker to verify her real intent to depart from the country. If it finds the above circumstances [of pregnancy or childbirth] to apply, it must not allow termination of the employment relationship, in order to protect the foreign worker’s rights and interests. If an employer illegally and “unilaterally terminates the employment relationship, and has been in serious violation of applicable laws and regulations protecting labors” as set forth in Article 54, paragraph 1 subparagraph 16 of the Act, permission [to terminate the employment relationship] must not be given, persuant to Article 54 and Article 72 of the same Act, and the employer cannot request an employment permit for two (2) years.

(2) The foreign worker may terminate employment and transfer to another employer: If both employer and employee agree to terminate the employment relationship, the employment permit will be abolished by the Ministry. Pregnancy is a circumstance not atributable to the foreign worker under Article 59, paragraph 1, subparagraph 4 of the Act, and the Ministry will agree to the foreign worker transfering to another employer or other work. If the foreign worker experiences any physical or mental discomfort at the time of employment transfer, she must apply for a pregnancy diagnosis certificate or a pregnant health certificate from a healthcare institution. She may then request the Ministry to suspend the employment transfer. If the Ministry agrees, the employment transfer may be suspended for a maximum of sixty (60) days from the end of the pregnancy. If the foreign worker wishes to resume the employment transfer, she must, within ten (10) days from the [end of the suspension] period and in accordance with Article 50 of the Administrative Procedure Act, request the Ministry to continue processing the employment transfer. After the Ministry has agreed, the foreign worker the empoyment transfer may be prolonged once for a maximum of sixty (60) days. In the event of a late request, a permission to continue the employment transfer will not be granted, and the foreign worker must depart fom the country in accordance with the law.

(3) The employer may hire a new foreign worker: Originally, in accordance with Article 58 of the Act and Article 20, paragraph 1 of the Regulations, an employer could only request the Ministry to allow replacement or introduction of a new foreign worker after the foreign owrker had departed from the country or had transfered to a new employer and the new employer had taken over the employment. Considering employers’ needs for workers, employers may now, pursuant to Article 20, paragraph 4 of the Act, introduce or employ a new foreign worker when the [original] foreign worker has for cause postponed their departure from the country and the Ministry has agreed to that postponement. In the case of employers in the manufacturing industry, that number of persons is not counted toward their total number of foreign persons hired under Article 14-7, paragraph 4 of the Reviewing Standards and Employment Qualifications for Foreigners Engaging in the Jobs Specified in Subparagraph 8 to 11, Paragraph 1 to Article 46 of the Employment Service Act (“Reviewing Standards”), nor do they count toward the number of persons referred to in Article 14-7, paragraph 1, subparagraph 2 of the reviewing Standards.

(4) Lodging of foreign workers: In order to protect foreign workers from safety issues such as personal injury, labor disputes, employers' illegal activities, etc., the Ministry has drawn up Article 46, paragraph 1 subparagraphs 8 through 11 to stipulate the key points of temporary lodging of foreign workers. If those key points are complied with during the term of employment, lodging may be provided in accordance with the regulations.
Recipients: National Immigration Agency, Ministry of the Interior, Ministry of Health and Welfare, Taipei City Government, Kaohsiung City Government, New Taipei City Government, Taoyuan City Government, Taichung City Government, Keelung City Government, Hsinchu County Government, Hsinchu City Government, Miaoli County Government, Changhua County Government, Yunlin County Government, Nantou County Government, Chiayi County Government, Chiayi City Government, Taitung County Government, Tainan City Government, Lienchiang County Government, Penghu County Government, Yilan County Government, Kinmen County Government, Hualien County Government, Pingtung County Government, Chinese Muslim Association,
Kaohsiung Mosque, Chinese Muslim Association,
Chung-Hua Foundation for People with Intellectual Disabilities,
The Catholic Jesuits Taipei Rerum Novarum Social Service Center,
Good Shepherd Social Welfare Foundation (Catholic Stella Maris International Service Center), Hsinchu Diocese of the Catholic Church of Taiwan Province (Catholic Hope Workers Center), Hsinchu Diocese of the Catholic Church of Taiwan Province (Immigrants and Foreign Workers Service Center), Hsinchu Diocese of the Catholic Church of Taiwan Province (Vietnamese Immigrant Immigration Office),
Holy Family Church Taipei, Republic of Taiwan Promotion of Labor Quality Development Association, Taiwan International Workers Association, Taiwan Labor Rights and Care Association, Association of Taiwan people social welfare, Asia-Pacific International Labor and Human Rights Promotion Association, Changhua County International Workers and Families Care Association, St. Paul's Catholic Church, Indonesian Economic and Trade Office to Taipei (Indonesian Shelter), Indonesian Economic and Trade Office to Taipei (Indonesian Shelter Zhongli Branch), Indonesian Economic and Trade Office to Taipei (Indonesian Shelter Taoyuan Branch), Indonesian Economic and Trade Office to Taipei (Indonesian Shelter Ruiqing Branch), Indonesian Economic and Trade Office to Taipei (Indonesian Shelter Taichung Branch)
Courtesy copies: Director’s Office of the Labor Development Department of the Ministry of Labor, Parliament Liaison Office of the Labor Development Department of the Ministry of Labor, Transnational Workforce Center of the Labor Development Department of the Ministry of Labor, Lex Data Information Inc. (Labor Law Enquiry System), Sections 2 and 4 of the Transnational Workforce Management Group of the Labor Development Agency of the Ministry of Labor