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Q1. What items could the private employment service institutions charge the employers on employment service to the appointment of the employers, and what would the amount of payment be?
A:
I. According to Article 2 of the Billing Items and Standard Fee Rate for Private Employment Service Institutions (hereinafter, the fee rate standard): “The items of service for billing are defined as follows: (1) Registration fee: the expense incurred from the registration for job request or recruitment. (2) Finder fee: the payment for matching the job finders and the employers in cultivating employment relations.”
II. According to Article 3 of the above standard fee rate: “profit-making employment service institutions may charge the employers on the following items of service with the amount specified below to the appointment of the employers for employment service: 1. registration fee and finder fee: (1) If the salaries for the 1st month of employment of the employee falls below the average salaries, the payment shall be limited to the salaries of the 1st month of employment for each employee in totality. (2) Service charge: No more than NT$2,000/year for each employee .”
III. According to Article 2 of the Billing Items and Standard Fee Rate for Private Employment Service Institutions (hereinafter, the fee rate standard), items of service for billing as stated in this standard are specified below: 5. Service charge: expenses incurred from employment service designated by the competent authority at the central level pursuant to Subparagraph 4 of Paragraph 1 under Article 35 of the Employment Service Act, including the transportation fee for the pickup and drop off of foreigners at the airport.
IV. According to Article 3 of the fee rate standard, the job brokers may charge the employers for rendering employment service to the appointment of the employers, and the fee shall not be more than NT$2,000/year for each employee as a service charge. Job brokers may claim the commission from employers only after the service has been rendered. Paragraph 3 under Article 6 of the same standard also requires that job brokers cannot collect fees from foreigners before rendering the service. Therefore, job brokers shall claim the service charge only after rendering the placement service for the employers. In addition, if the jog broker serves the employers for less than 1 year, it may only charge the employer for the service in proportion to the agreed period of service. This standard shall be subject to amendment in the future, whereby job brokers cannot apply service charges to employers in advance.
Q2. What items could the private employment service institutions charge the migrant workers on employment service to the appointment of the migrant workers, and what would the amount of payment be?
A:
I. According to Article 5 of the Billing Items and Standard Fee Rate for Private Employment Service Institutions (hereinafter, the fee rate standard): “profit-making employment service institutions, in rendering employment services to the appointment of foreigners for engagement in the works specified in Subparagraphs 1-7 or Subparagraph 11 of Paragraph 1 under Article 46 of the Employment Service Act may charge the foreigners on the following items in the amount specified as follows: (1) Registration fee and finder fee: no more than the salaries of the foreigners for the 1st month of employment in totality. Unless the job is requested under special conditions and with the consent of the foreigner. (II) Service charge: No more than NT$2,000/year.”
II. According to Article 6 of the fee rate standard: “profit-making employment service institutions, in rendering employment services to the appointment of foreigners for engagement in the works specified in Subparagraphs 8-10 of Paragraph 1 under Article 46 of the Employment Service Act may collect service charge from the foreigners. The amount of the service charge stated in the preceding paragraph shall be based on the duration of employment of the foreigner for this instance in accumulation that the rate shall be limited to NT$1,800 for each month in the 1st year of employment, and limited to NT$1,700 for each month in the 2nd year of employment, and limited to NT$1,500 for each month in the 3rd year of employment. For foreigners who have been employed for more than 2 years, and have to depart Taiwan due to the termination of employment or expiration of the employment permit and return to Taiwan again for employment with the same employer, the service charge for this foreigner shall be limited to NT$1,500 for each month. The aforementioned fee cannot be collected in advance.”
Q3. If a migrant worker has been working for 2 years, departed from Taiwan, and returned for work again, what amount of service charge could the job broker collect from this migrant worker?
A:
I. According to the interpretation under Ministry of Labor Lao-Dong-Fa-Guan-Zi no. 10505178571 dated 2017/01/24, profit-making employment service institutions, in rendering employment services to the appointment of foreigners for engagement in the works specified in Subparagraphs 8-10 of Paragraph 1 under Article 46 of the Employment Service Act may collect service charge from the foreigners. The service charge shall be based on the duration of the foreigner's employment. For this instance in accumulation, the rate shall be limited to NT$1,800 for each month in the 1st year of employment, limited to NT$1,700 for each month in the 2nd year of employment, and limited to NT$1,500 for each month in the 3rd year of employment. For foreigners who have been employed for more than 2 years, and have to depart Taiwan due to the termination of employment or expiration of the employment permit and return to Taiwan again for employment with the same employer, the service charge for this foreigner shall be limited to NT$1,500 for each month.
II. If the migrant worker has been employed for more than 2 years and has to depart Taiwan due to the termination of employment or expiration of the employment permit and return to Taiwan again for employment with the same employer, the service charge for this foreigner shall be limited to NT$1,500 for each month.
Q4. If the employment relation between the employer and the employed migrant worker is terminated for some reason and seeks replacement service with a private employment service institution (hereinafter, job broker), will it be an issue if the job broker charges the employer for registration fee and finder fee?
A:
Private employment service institutions recruit migrant workers to the appointment of the employer and may charge the employer registration fee and finder fee based on the salary of the employee recruited in the 1st month of employment pursuant to Article 3 of the fee rate standard. If the employer and the employed migrant worker terminate their employment reasons for some reason, and the job broker proceeds with the service of finding a replacement for the employer, the job broker may charge a finder fee for a second time. In addition, it will be necessary for the job broker to register for recruitment again, and a registration fee may also be charged depending on the situation. However, the registration fee and finder fee shall still be controlled within the aforementioned limit. If the employment agreement binding the employer and the foreigner is terminated within 40 days after the effective date due to the fault of the foreigner, the employer shall request the job broker to recommend a replacement once or to refund 50% of the finder fee.
Q5. The time for the job broker to collect related fees from the employer and the ways of refunding the service period is less than 1 year.
A:
According to Article 3 of the fee rate standard, job brokers may charge the employer NT$2,000 each year for each migrant worker placed from the employment service by the job broker to the appointment of the employer, but there is no specific requirement on the timing of fee collection, given the fact that a job broker cannot charge for payment before rendering service, and also under Paragraph 3 under Article 6 of the fee rate standard, a job broker cannot charge the foreigner for the service in advance that it may collect the fee only after rendering service to the employer. If the job broker rendered service to the employer for less than 1 year, it may only charge for the service on the basis of the actual duration of service in proportion to the time of 1 year. The fee rate standard is subject to amendment, and by then, the job broker can no longer collect service charges from the employer in advance.
Q6. Pick up and drop off migrant workers at the airport.
A:
I. According to Subparagraph 5 under Article 2 of the Billing Items and Standard Fee Rate for Private Employment Service Institutions: “the items under the fee rate standard are defined as follows: 5. Service charge: the expenses incurred from the employment service designated by the competent authority at the central level under Subparagraph 4 of Paragraph 1 under Article 35 of the Employment Service Act, including the transportation fees for the pickup and drop off the foreigner at the airport.” In rendering the items of services by private employment service institutions pursuant to Article 35 of the Employment Service Act and Article 3 of this Regulations, the expenses incurred from transportation for pickup and drop off foreigners at the airport should be included in the service charge, and cannot charge for additional payment from the migrant worker or the employer.
II. Private employment service institutions have the discretion of accepting the appointment of the employer or the migrant workers as long as there is no violation of any applicable legal rules. In rendering services other than the employment service as stated in the Employment Service Act and these Regulations, private employment service institutions shall enter into an agreement with relevant employers or migrant workers at free will depending on the services appointed but shall charge for the service reasonably.
III. Furthermore, if the migrant worker has the need to return to his or her home country for holidays, it will not be included in the aforementioned employment service. Accordingly, the migrant worker concerned shall be responsible for the transportation fee derived or additionally incurred. Accordingly, the concerned migrant worker and the private employment service institution shall reach an agreement for the service at a reasonable fee. If the migrant worker departs from an airport not a short distance from the work site because of the choice of low airfare, the trip for the drop-off and pickup at the airport, for this instance, is still covered as a part of the employment service under Article 35 of the Employment Service Act and Article 3 of this Regulations and therefore included in the service charge collected from the migrant worker. No additional charge will be permitted.
Q7. The issue of service charges on the part of the migrant worker in the waiting period of switching employers.
A:
I. If a job broker accepts the appointment of a migrant worker for seeking employment in Taiwan, this job broker shall enter into a service agreement with the migrant worker specifying the terms of appointment, rights and obligations, tasks to be accomplished, and damage caused by a breach of contract.
II. Within the perpetuity of the service agreement binding the job broker and the migrant worker, if the job broker has provided actual service for the migrant worker in accordance with the content of the agreement, it may charge for the service pursuant to Article 6 of the Billing Items and Standard Fee Rate for Private Employment Service Institutions. As stated in the front part of Paragraph 1 under Article 264 of the Civil Code; “if there is contractual obligation binding the contracting parties, and one party concerned fails to perform the obligation, the other party shall decline to perform its part of the obligation.” As such, if the job broker fails to provide actual service, the migrant worker may decline to effect payment pursuant to the front part of Paragraph 1 under Article 264 of the Civil Code. If the migrant worker no longer has the need to appoint the job broker for rendering employment service, it is preferably that the migrant worker shall express its intent of termination of the service agreement to the job broker in writing (e.g.: postal witness letter). Accordingly, the job broker can no longer charge the migrant worker for the service once the expression of intent of termination of the employment agreement becomes effective.
III. Furthermore, if the job broker has provided actual service to the migrant worker within the perpetuity of the service agreement during which the migrant worker is in the waiting period of switching employers, the job broker can still charge the migrant worker for the service rendered. If the employment of the migrant worker expires in the duration of epidemic control the migrant worker cannot depart from Taiwan, and there is still the need to appoint the job broker to provide employment service, this migrant worker shall enter into a service agreement with the job broker. If the job broker has provided actual service for the migrant worker, it still can charge the migrant worker for the service.
Q8. If the job broker dispatched its staff to assist the employer or the migrant worker in translation, the transportation fee would be incurred from the travel of the translation personnel of the job broker. Could the job broker charge for these additional expenses incurred from traveling?
A:
- According to Subparagraph 2 under Article 3 of the Regulations Governing the Permission and Administration of Private Employment Service Institutions (hereinafter, the Regulations), the acceptance of the appointment of employers or foreigners to take care of the daily lives of foreigners in the Republic of China, arrangement of the entry and exit, health inspection, reporting the health inspection result to the public health authorities, consultation, counseling, and transactions for the foreigners, are the designated items of employment service of the competent authority at the central level. According to Subparagraph 5 under Article 2 of the Billing Items and Standard Fee Rate for Private Employment Service Institutions, service charge will be the fee required for employment service designated by the competent authority at the central level pursuant to Subparagraph 4 of Paragraph 1 under Article 35 of the Employment Service Act, including the transportation service for the foreigners.
- Accordingly, the translation service arranged by the job broker for assistance to the employer or migrant worker shall fall into the category of “translation” employment service under Subparagraph 2 under Article 3 of this law and the expenses incurred (including traveling expense) are already included in the service. No additional payment shall be charged.
Q9. Could the job broker charge the migrant worker to process a new round of exit and entry into Taiwan?
A:
- According to Article 3 of the Regulations Governing the Permission and Administration of Private Employment Service Institutions (hereinafter, the Regulations), the items of employment service designated by the competent authority at the central level pursuant to Subparagraph 4 of Paragraph 1 under Article 35 of the Employment Service Act are: (1) Accepting the appointment of the employers in the recruitment, introduction, continued employment, and certification of recruitment, recruitment permit, employment permit, extended employment permit, replacement of worker, switching employers, switching jobs, changes in the content of the employment permit, reporting on the absence of foreigners at work for 3 consecutive days for reference filing. (II) Acceptance of the appointment of the employer or the foreigner in the caring of daily lives of the foreigner in the Republic of China, arrangement of entry and exit, arrangement of health inspection, reporting on the result of health inspection to the public health authorities, consultation, counseling, and translation. (III) Acting on behalf of the foreigner to apply for residency for acceptance of the appointment of a foreigner in the employment of work specified in Subparagraphs 8-11 under Article 46 of the Employment Service Act
- According to Paragraph 1 under Article 20 of the Regulations Governing the Temporary Staying, Residence, and Permanent Residence of Foreigners, “If specific foreigner has the need of departure and re-entry in the duration of residency, apply for the issuance of a re-entry permit with the Immigration Administration before departure and re-entry under Article 34 of the Immigration Act”. The application for residency of the foreigner after re-entry into Taiwan shall fall within the validity period of the residence visa.
- In sum, re-entry is an integral part of residency, where the Immigration Administration shall be the competent authority. In other words, it falls within the scope of employment service in “acting on behalf of the foreigner to apply for residency” under Subparagraph 3 of Article 3 of this law. Accordingly, the expenses incurred shall be included in the service charge. No additional payment shall be charged. Apply for a re-entry permit with the Immigration Administration at no charge, and may be applied online.
Q10. Could the job broker charge the foreigner on the expenses incurred from the traveling and related administrative services like medical attention, pickup and drop off at the airport for the returning trip to home country for a holiday, declaration of income tax, processing passport renewal and replacement of missing personal documents (like residence visa, national health insurance card)?
A:
I. According to Article 35 of the Employment Service Act, “Private Employment Service Institutions may engage in the following service business: (1) Job placement or labor referral. (II) Recruitment of workers as appointed. (III) Assistance to the nationals in designing the employment counseling or occupational psychological test in the career development plan. (IV) Other employment service items designated by the competent authority at the central level. Private employment service institutions may charge for the rendering of the aforementioned services and the items for billing and the amount shall be determined by the competent authority at the central level.” According to Article 3 of the Regulations Governing the Permission and Administration of Private Employment Service Institutions (hereinafter, the Regulations), “the items of employment service designated by the competent authority at the central level pursuant to Subparagraph 4 of Paragraph 1 under Article 35 of the Employment Service Act are: (1) Accepting the appointment of the employers in the recruitment, introduction of foreigners, continued employment and certification of recruitment, recruitment permit, employment permit, extended employment permit, replacement of worker, switching employers, switching jobs, changes in the content of the employment permit, reporting on the absence of foreigners at work for 3 consecutive days for reference filing. (II) Acceptance of the appointment of the employer or the foreigner in the caring of daily lives of the foreigner in the Republic of China, arrangement of entry and exit, arrangement of health inspection, reporting on the result of health inspection to the public health authorities, consultation, counseling, and translation.”
II. According to Subparagraph 5 under Article 2 of the Billing Items and Standard Fee Rate for Private Employment Service Institutions: “the items under the fee rate standard are defined as follows: 5. Service charge: the expenses incurred from the employment service designated by the competent authority at the central level under Subparagraph 4 of Paragraph 1 under Article 35 of the Employment Service Act, including the transportation fees for the pickup and drop off the foreigner at the airport.” In rendering the items of services by private employment service institutions pursuant to Article 35 of the Employment Service Act and Article 3 of this Regulations, the expenses incurred from transportation for pickup and drop off foreigners at the airport should be included in the service charge, and cannot charge for additional payment from the migrant worker or the employer.
III. Private employment service institutions have the discretion of accepting the appointment of the employer or the migrant workers as long as there is no violation of any applicable legal rules. In rendering services other than the employment service as stated in the Employment Service Act and these Regulations, private employment service institutions shall enter into an agreement with relevant employers or migrant workers at free will depending on the services appointed but shall charge for the service reasonably.
IV. Accordingly, migrant workers may have the need for medical attention due to personal reasons, returning to their home country for a family visit, declaration of income tax, renewal of passport, or request for replacement of missing personal documents, which are not included in the aforementioned employment service. Accordingly, the parties concerned shall enter into an agreement to charge the fee for transportation and related administrative services at a reasonable level.
Q11. Could the job broker charge the employer or the migrant worker for translation service after collecting the service charge under the law?
A:
I. Pursuant to Paragraph 1 under Article 35 of the Employment Service Act, job brokers may engage in the following business of employment service. including job placement or labor referral, acceptance of appointment for recruitment of employees, assistance in the design of employment counseling or occupational psychological test in the career development plan, and other items of employment service designated by the competent authority at the central level.
II. According to Article 3 of the Regulations Governing the Permission and Administration of Private Employment Service Institutions (hereinafter, the Regulations), the items of employment service designated by the competent authority at the central level pursuant to Article 35 of the Employment Service Act are: (1) Accepting the appointment of the employers in the recruitment, introduction of foreigners, continued employment and certification of recruitment, recruitment permit, employment permit, extended employment permit, replacement of worker, switching employers, switching jobs, changes in the content of the employment permit, reporting on the absence of foreigners at work for 3 consecutive days for reference filing. (II) Acceptance of the appointment of the employer or the foreigner in the caring of daily lives of the foreigner in the Republic of China, arrangement of entry and exit, arrangement of health inspection, reporting on the result of health inspection to the public health authorities, consultation , counseling, and translation. (III) Acceptance of the appointment of foreigners engaged in the work under Subparagraphs 8-11 of Paragraph 1 under Article 46 of the Employment Service Act in assisting the processing of residence visa
III. According to Subparagraph 2 of Paragraph 1 under Article 3 and Article 6 of the Billing Items and Standard Fee Rate for Private Employment Service Institutions, job brokers may apply service charge to the employers for the appointment of employment service of the employers at no more than NT$2,000 each year. The job brokers may also apply service charge on the foreigners to the appointment of employment service of the foreigners on the basis of their seniority of service in Taiwan (1st year for NT$1,800, 2nd year for NT$1,700, and 3rd year and beyond for NT$1,500 per year). No collection of fee before the rendering of service.
IV. In sum, the service charge applied to the employer or the foreigners is already included in the fee for the employment service under the aforementioned Employment Service Act and the Regulations. No additional charge is permitted. If the job broker provides assistance to the employer or the migrant workers for transactions related to the lack of cooking skills or helping the recipient of caregiving in a rehabilitation exercise, could the job broker charge for the translation service? If the content of the translation falls within the scope of assistance as instruction for work within the scope of employment service under the Employment Service Act and the Regulations, the job broker cannot charge the employer or the migrant worker for the service.