Article Content

Title:
Employment Service Act ( 2018.11.28 Modified )Ch

  Chapter Ⅴ Employment and Administration of Foreign Workers

Article 42
For the purpose of protecting nationals’ right to work, no employment of foreign worker may jeopardize nationals’ opportunity in employment, their employment terms, economic development or social stability.
Article 43
Unless otherwise specified in the Act, no foreign worker may engage in work within the Republic of China should his/her employer have not yet obtained a permit via application therefore.
Article 44
No one may illegally let foreign worker stay and engage in work.
Article 45
No one may illegally refer foreign worker to work for any third party.
Article 46
Unless otherwise provided in the Act, the work that a foreign worker may be employed to engage in within the Republic of China is limited to the following:
1.Specialized or technical work.
2.Director/manager/executive of a business invested in or set up by overseas Chinese or foreigner(s) with the authorization of the Government of the Republic of China.
3.Teacher at the following schools:
(1)Teacher at a public or registered private college/university or school established especially for foreign residents.
(2)Approved teacher teaching course(s) on foreign language(s) at a public or registered private primary or high school.
(3)Teacher teaching course(s) at a public or registered private experimental high school's bilingual department or at bilingual school(s).
4.Full-time teacher at a short-term class registered for supplementary schooling in accordance with the Supplementary Education Act.
5.Sports coach and athlete.
6.Religious, artistic, and show business work.
7.Crew member of a merchant vessel, working vessel, and vessel ad hoc permitted by the Ministry of Transportation and Communication.
8.Marine fishing/netting work.
9.Household assistant and nursing work.
10.Workers designated by the Central Competent Authority in response to national major construction project(s) or economic/social development needs.
11.Other specialized workers ad hoc approved by the Central Competent Authority due to the lack of such specialist in the domestic employment market and the business necessity to retain the service of such specialist
The Central Competent Authority shall consult the other central competent authority(ies) administering the work concerned to determine the working qualification(s) and standard of review thereof in respect of the foreign worker engaging in work as referred to in paragraph 11 of this article, except for as otherwise provided by other laws.
The employer when employing a foreign worker to engage in work as referred to in subparagraphs 8 to 10 of paragraph 1 of this article, shall execute a labor contract in writing with the employed foreign worker and with fixed duration only; in case where it is not so fixed, the duration of his/her employment shall be deemed as the same with the duration of employment permit thereof. The foregoing in this paragraph shall equally apply in the case of extension of such labor contract.
Article 47
With respect to the employment of foreign worker(s) to engage in work as referred to in Subparagraphs 8 to 11 of Paragraph 1 of Article 46, employer shall first make domestic recruitment with reasonable labor terms; only when such domestic recruitment cannot acquire sufficient number of employee(s) to satisfy the needs of his/her business employer may apply for permit to recruit foreign person(s) with a view to filling up such insufficiency. Furthermore, when conducting recruitment of foreign worker(s) under such circumstances, employer shall notify the labor union or labors of the business entity of the full and entire content concerning such recruitment and shall publicly announce the same in the work place designated for such foreign worker(s) to engage in work.
When conducting the domestic recruitment in accordance with paragraph 1 of this article, employer, unless otherwise justified, may not refuse to employ job applicant(s) as referred by public employment services institution(s).
Article 48
Prior to employing foreign worker to engage in work, employer shall apply to the central competent authority for employment permit with relevant documents submitted. However, the following foreigners are exempted:
1. A foreign worker to be employed as consultant or researcher by the respective government or their subordinate academic research institutes.
2. A foreign worker has married a national of the Republic of China with a registered residence in the Republic of China and has been permitted to stay therein.
3. A foreigner employed at a public or registered private college/university in the field of a course of lectures or an academic research approved by the Ministry of Education.
The Central Competent Authority shall collaborate with the other central competent authority(ies) administering the occupations in question to prescribe the regulations regarding the application for permit and annulment thereof as referred to in paragraph 1 of this article and other matters related to the employment and administration of foreign workers.
The Central Competent Health Authority shall collaborate with the Central Competent Authority to prescribe the regulations administering the health examinations conducted upon the employed foreign worker as referred to in paragraph 1 of this article prior to his/her entry into the Republic of China and thereafter.
The hospital(s), as may be designated by the Central Competent Health Authority, shall conduct the health examinations as referred to in paragraph 3 of this article upon the employed foreign worker after his/her entry into the Republic of China; the Central Competent Health Authority shall prescribe the regulations regarding the qualification(s) of the hospital(s) for such designation, the designations, the termination of such designation and other matters related to administration thereof.
Should an employed foreign worker fail such health examinations and be ordered to depart from the Republic of China within a specified period, his/her employer shall immediately urge and supervise such departure.
The Central Competent Authority may prescribe the country of origin and the quota thereof regarding the foreign workers who engage in the work as referred to in Subparagraphs 8 to 11 of Paragraph 1 of Article 46.
Article 48-1
The local employer of a foreign worker must complete the employer training session held by the competent authority or its designated non-profit organization before hiring a foreign worker to render home care or household assistance for the first time. The prospective employer must submit a certificate of attendance when applying for the employment permit.
Rules governing the participants, details, implementation, the eligibility and requirement of the organizational designee and other criteria of the abovementioned training session are to be stipulated by the central Competent Authority.
Article 49
While stationed in the Republic of China, foreign embassies/consulates, foreign agencies, international organizations and the staff thereof intending to employ foreign worker(s) to engage in work therefore in the Republic of China shall apply to the Ministry of Foreign Affairs for permit to that effect; the Ministry of Foreign Affairs shall collaborate with the Central Competent Authority to prescribe the regulations regarding the issuance and annulment of such permit and other matters related to the employment and administration thereof.
Article 50
The scope of jobs as limited in Paragraph 1 of Article 46 does not apply to the following categories of students to be employed to engage in work in the Republic of China; with the exception of the winter and summer vacations, their sum of working hours shall not exceed 20 hours per week:
1. Foreign students enrolled in a public or registered private college/university; and
2. OverseasChinese students and other foreign students of Chinese origin enrolled in a public or registered private high or higher school.
Article 51
Where the employed foreign worker is amongst any of the following, the requirements as referred to in Paragraphs 1 and 3 of Article 46, Article 47, Article 52, Paragraphs 3 and 4 of Article 53, Subparagraph 5 of Article 57, Subparagraph 4 of Article 72 and Article 74 are exempted, and his/her employer is also exempted from paying the employment security fees as required under Article 55:
1. A refugee permitted to stay in the Republic of China;
2. One who has been continuously employed, with permission of the relevant competent authority(ies), to engage in work in the Republic of China, has maintained a settled practice of good-mannered behavior, and has kept a residence in the said territory for at least five consecutive years;
3. One permitted to live with his/her lineal relative who has a registered domestic residence in the Republic of China; or
4. One permitted to stay permanently in the territory of the Republic of China.
The foreign workers as referred to in subparagraphs 1, 3 and 4 of paragraph 1 of this article may, without their employers’ initiation, apply on their own initiatives to the Central Competent Authority for permits to engage in work in the Republic of China.
Where the performance of contract(s) of construction, sale, technical cooperation and so forth necessitates a foreign legal person to appoint a foreign worker to engage in work as referred to in Subparagraph 1 or 2 of Paragraph 1 of Article 46 in the Republic of China, and where such foreign legal person has not established any branch office or representative agency in the said territory, the business entity with whom such foreign legal person contracted or the agent duly authorized by such foreign legal person shall apply therefore in accordance with the regulations promulgated pursuant to Paragraphs 2 and 3 of Article 48.
Article 52
Where a foreign worker is employed to engage in work as referred to in Subparagraphs 1 to 7 and Subparagraph 11 of Paragraph 1 of Article 46, the duration of the permit therefore shall not exceed three years; upon the expiration of which the employer may apply for extension thereof pursuant to his/her business needs.
Where a foreign worker is employed to engage in work as referred to in Subparagraphs 8 to 10 of Paragraph 1 of Article 46, the duration of the permit therefore shall not exceed three years. Should some major and special circumstances occur, the employer may apply for a further extension thereof. The Executive Yuan shall prescribe the circumstances and duration of such further extension. However, in the event of a major construction, the duration of such further extension shall not exceed six months.
The central Competent Authority shall invite and consult with representatives of the relevant governmental agency(ies), laborers, employers, and scholars to decide, pursuant to the foreign workers employment alert index, the maximum number of foreign workers permitted per year to be introduced into the Republic of China to engage in work as referred to in the preceding paragraph.
An employed foreign worker who has not violated any laws or regulations within the duration of employment permit, and has departed from the Republic of China due to the termination of employment or the expiration of the employment permit, or an employed foreign worker who failed the health examinations but accepted medical treatment thereafter at his/her national country and then passed health examinations therein, may re-enter the Republic of China to work. However, a foreigner who engages in work referred to in Subparagraphs 8 to 10 of Paragraph 1 of Article 46 shall not exceed more than 12 years in the course of his work in the territory of the Republic of China, and shall not apply the provisions of Subparagraph 2 of Paragraph 1 of the preceding Article.
The foreign worker under the proviso of the preceding paragraph requests to return to his / her national country during the employment permit period, the employer shall give his/her consent. The central competent authority shall prescribe the method of leaving-taking, duration of absence, procedures and other relevant regulations.
Where a foreign worker providing home care services prescribed in Subparagraph 9 of Paragraph 1 of Article 46 has completed professional training session or has spontaneously improved his/her skills and renders outstanding performance, which satisfies the eligibility criteria and other requirements set by central competent authority, the total years of service of such person within the territory of Republic of China may not exceed 14 years in aggregation.
Rules governing the eligibility, requirements, determination methods and other criteria of the matters specified in the preceding paragraph are to be stipulated by the central Competent Authority in consultation with the central relevant Competent Authorities.
Article 53
Should an employed foreign worker have to transfer to a new employer or be employed for two or more employers within the duration of the employment permit, the new employer(s) shall apply for permit therefore; in case of transfer to a new employer, the new employer shall submit upon such application the relevant document(s) certifying the termination of the previous employment.
The requirement as referred to in paragraph 1 of this article is exempted in the case where the foreign workers as referred to in Subparagraphs 1, 3 and 4 of Paragraph 1 of Article 51 have obtained the permit from the Central Competent Authority.
Where a foreign worker who has been employed to engage in work as referred to in Subparagraphs 1 to 7 of Paragraph 1 of Article 46 shifts to a new employer or new work, he/she is prohibited from engaging in work as referred to in subparagraphs 8 to 11 the of same paragraph of same article for his/her new employer or as his/her new work.
Unless otherwise authorized by the Central Competent Authority on account of the respective circumstances as referred to in Paragraph 1 of Article 59, a foreign worker who has been employed to engage in work as referred to in Subparagraphs 8 to 11 of Paragraph 1 of Article 46 may not shift to a new employer or new work.
Where an employed foreign worker as referred to in paragraph 4 of this article is authorized to shift to a new employer or new work, the duration of the previous employment and the new one, as calculated in aggregate, shall be subject to the restriction as referred to in Article 52.
Article 54
Should any of the following circumstances have arisen or existed with respect to the employment of foreign worker(s) to engage in work as referred to in Subparagraphs 8 to 11 of Paragraph 1 of Article 46, the Central Competent Authority shall not issue the whole or a part of the permit for recruitment, employment, or the extension thereof; in case the permit for recruitment has already been issued, the Central Competent Authority may halt the introduction of foreign workers:
1.The work place in which the foreign worker(s) is designated to engage in work once employed has been subject to a legal strike or industrial dispute as referred to in Article 10.
2.During the domestic recruitment, the employer has unjustifiably refused to employ worker(s) referred by public employment services institution(s) or job applicant(s) appeared on his/her/their own initiative(s).
3.The number of foreign workers whose whereabouts are untraceable or who are deliberately hidden by the employer has reached a certain figure or percentage as prescribed by the central competent authority.
4.The Employer has ever illegally employed foreign worker(s) to work.
5.The employer has ever illegally laid off/discharged national worker(s).
6.The local competent authority(ies) has/have investigated and proven that the employment of foreign worker(s) has undermined the labor terms in the employment contract(s) with national worker(s).
7.The employed foreign worker(s) has/have disturbed the tranquility and public orders of the local community and has/have been adjudicated upon and punished on that account in accordance with the Social Order Maintenance Act.
8.The employer has ever illegally withheld passport(s)/ residence certificate(s) of foreign worker(s), or embezzled belongings of foreign worker(s).
9.The Employer has failed to pay within the prescribed period the travel expenses required for dispatching the employed foreign worker(s) out of the territory of the Republic of China or the necessary expenses for the detention of his/her employed foreign worker(s) prior to the departure.
10.When the entrusting private employment services institution(s) with recruiting foreign worker(s), the employer has demanded, agreed to be paid at a later stage, or accepted unjust interests from such institution(s).
11.The employer has submitted false information when processing the application for the employment of foreign worker(s) or matters regarding the recruitment, introduction, or administration thereof.
12.The employer has made false recruitment advertisement(s).
13.The employer's application has not been made in conformity with the relevant requirements and he/she has failed to make necessary supplements and/or rectifications thereof within the specified period of time.
14.The employer has violated the provision(s) of the act or the regulations promulgated pursuant to Paragraphs 2 or 3 of Article 48 or Article 49.
15.The employer violated the provisions of Occupational Safety and Health Act and resulted in death or loss of partial or all working abilities of the engaged foreign workers without making indemnification or compensation according to the law.
16.Other than the above, the employer has been in serious violation of applicable laws and regulations protecting labors.
For the purpose of this Article, the circumstances as referred to in subparagraphs 3 to 16 of paragraph 1 of this article shall be limited to those that have arisen or existed within the two-year period prior to the day of application.
The Central Competent Authority shall officially announce the figure or percentage of number as referred to in subparagraph 3 of paragraph 1 of this Article.
Article 55
Where employing a foreign worker(s) to work as referred to in Subparagraphs 8 to 10 of Paragraph 1 of Article 46, the employer shall pay employment security fees into the specific account for employment security fund as established by the central Competent Authority for the purposes of processing matters regarding promotion of employment of nationals, enhancement of labor welfare, and handling the employment and administration of foreign workers.
The amount of the employment security fees as referred to in the preceding paragraph shall be determined by the central Competent Authority in consultation with relevant authorities based on the economic development of the state, the supply and demand of the labor market as well as other related working conditions.
Where the employer or the care receiver meets the requirements of low-income or lower-middle-income households as defined in Public Assistance Act, or the qualification of low-income subsidy pursuant to People with Disabilities Rights Protection Act or the lower-middle-income living subsidies pursuant to Senior Citizen Welfare Act, such employer will be exempt from paying the employment security fees as described in Paragraph 1 of this Article if he hires a foreign worker to render the home care services specified in Subparagraph 9 of Paragraph 1 of Article 46.
In the event that the employed foreign worker described in Paragraph 1 has lost contact or has terminated the employment, the employer may be relieved from the obligation of paying the employment security fees after the employer has duly reported pursuant to applicable rules and the employment permit has been annulled accordingly.
If the employer fails to pay the employment security fees within the time limit, an additional 30-day extension may be granted. However, if the payment is not received within such period, the employer is subject to a delay penalty calculated at a rate of 0.3% of the total outstanding fees from the next day following the 30-day period until the day before the payment date. The delay penalty shall not exceed 30% of the total outstanding fees.
In the event that the employer does not pay the delay penalty within 30 days from the start date under the preceding paragraph, the central Competent Authority may file for a direct enforcement against the unpaid amount of the employment security fees and the delay penalty and may revoke the employer’s employment permit in whole or in part.
The Competent Authority shall regularly publish the status and related meeting minutes regarding fund operation on the official websites.
Article 56
Should an employed foreign worker have been unjustifiably absent from his/her work and not in contact for three consecutive days or should the employment of a foreign worker be terminated, the employer shall make notification in writing that sets out relevant matters to the local competent authority(ies), the entry and exit administrative authority and the Police of such event within three days thereafter. If an employed foreign worker has been absent from his/her work and not in contact with their employer, the employer may notify in writing the entry and exit administrative authority and the Police of conducting the inspection.
In the event that the employed foreign worker has been falsely reported by the employer of having been unjustifiably absent from his/her work and not in contact at least three days, the engaged foreign worker may file an appeal to the local competent authority. Where such falsity is verified, the central competent authority shall cancel the original disciplinary sanction of terminating employment permit and the order to depart from the Republic of China within a specified period.
Article 57
As for employment of foreign worker(s), employer shall not engage in any of the following:
1.Employing a foreign worker without permit or after the expiration of permit therefore, or a foreign worker that has been permitted to be employed at the same time by a third party;
2.Employing in the name of the employer a foreign worker, but in reality causing that foreign worker to engage in work for a third party;
3.Appointing the employed foreign worker to work that is not within the sphere of the permit;
4.Commanding, without permission therefore, an foreign worker who is employed to engage in the work as referred to in Subparagraphs 8 to 10 of Paragraph 1 of Article 46 to change his/her work place;
5.Failing to arrange for the employed foreign worker to undergo health examinations or failing to submit the health examinations report(s) to the competent health authority in accordance with the applicable laws and regulations;
6.Dismissing or laying off national worker(s) as a result of having employed foreign worker(s) by the employer;
7.Exerting coercion, threat, or any other illegal means upon the employed foreign worker(s) to enforce him/her/them to engage in work contrary to his/her/their free will;
8.Illegally withholding the passport(s)/ residence certificate(s) of foreign worker(s) or embezzling belongings of foreign worker(s); or
9.Having violated, other than the above, the provision(s) of the Act or the regulations promulgated pursuant to the Act.
Article 58
Where a foreign worker(s) has departed from the Republic of China, deceased or untracked, which has been notified the entry and exit administrative authority and the Police for six months and has not been found, within the duration of the employment permit due to reason(s) not attributable to their employer, the employer may apply to the Central Competent Authority for replacement thereof.
Where employing foreign worker(s) to engage in family nursing work as referred to in Subparagraphs 9 of Paragraph 1 of Article 46, the employer may apply to the Central Competent Authority for replacement thereof should no reasons be attributable to their employer and any of the following circumstances has arisen or existed:
1.Where a foreign worker whose whereabouts is untraceable at airports of entering or departing countries or at detained institutions, the employer has notified the entry and exit administrative authority and the Police pursuant to applicable legal procedures.
2.A foreign worker whose whereabouts is untraceable at employer's location has not been captured after the employer has notified the entry and exit administrative authority and the Police pursuant to applicable legal procedures for three months and has not been found.
3.A foreign worker(s) shifts to work for a new employer or to engage in new work within the duration of the employment permit with his/her employer and is employed by his/her new employer or out of the Republic of China.
The duration of the permitted replacement as referred to in paragraphs 1 and 2 of this article shall be restricted to the remainder of the original duration of the employment permit regarding the replaced foreign worker(s); the application for replacement shall not be permitted should the remainder of the said original duration be less than six months.
Article 59
When one of the following circumstances has arisen or existed, the foreign worker employed to work as referred to in Subparagraphs 8 to 11 of Paragraph 1 of Article 46 may shift to work for a new employer or to engage in new work upon the authorization of the central competent authority:
1.His/her original employer or the one who was intended to be taken care of by the employed foreign worker has deceased or emigrated;
2.The vessel he/she works on has been seized, has sunk, or has been under repair so as to compel the discontinuation of the work;
3.The discontinuation of the work caused in the fact that his/her original employer has wind up the factory, suspended the business, or failed to pay the wage/salary pursuant to the employment contract resulting in the termination thereof;
4.Other than the above, similar circumstances not attributable to the employed foreign worker.
The Central Competent Authority shall promulgate the procedures governing the shift to a new employer or new work as referred to in paragraph 1 of this article.
Article 60
Should an employed foreign worker be dispatched out of the Republic of China by the entry and exit administrative authority in accordance with applicable laws and regulations, the travel expenses required for such dispatch and the necessary expenses for the detention prior to the departure shall be paid by the following order:
1.Person who illegally accommodates, employs or introduces foreign worker to engage in work.
2.Foreign worker's employer whom are attributable to reasons of dispatch.
3.Foreign worker to be dispatched.
Should there be more than one person as referred to in subparagraph 1 of paragraph 1 of this article, all shall take joint able and severable responsibility.
The expenses as referred to in paragraph 1 of this article shall be advanced by the employment security fund and to be repaid by responsible person(s), upon which the competent authority administering the said fund shall notify the person(s) of such and specify a certain period of time for the person(s) to reimburse the fund of the advanced money; should the person(s) fail to make the reimbursement within the specified time limit, the said competent authority shall resort to legal compulsory proceedings to collect .
Where employer has paid the bond may apply to the Central Competent Authority for return of said bond by submitting said bond payment together with relevant certifying document(s).
Article 61
Should an employed foreign worker decease during the duration of the employment contract, his/her employer shall deal with on behalf of the deceased with and be responsible for the relevant funeral matters.
Article 62
The competent authorities, the entry and exit administrative authority, the police, coastal patrol or the judicial police officers may appoint personnel to carry certificates and conduct inspections in places where foreign worker(s) engage(s) in work or places suspected of having foreign worker(s) illegally engaged in work therein.
No employer, the employer's agent, foreign worker(s) or other related persons may evade, impede, or refuse the inspections as referred to in paragraph 1 of this Article.