Sun, Jan 21, 2018 - Page 6 News List

EDITORIAL: Complexity in law creates loopholes

A Taiwan NextGen Foundation survey released on Wednesday found that about 66 percent of workers do not fully understand the latest amendments to the Labor Standards Act (勞動基準法).

Amendments to the act passed on Jan. 10 include a policy that allows conditional use of a “12 days on, two off” schedule instead of an across-the-board “one day off every seven days” schedule, a monthly overtime limit of 54 hours instead of 46 hours, a conditional rest time between shifts of eight hours instead of 11 hours and a new rule that allows for a maximum of 138 hours of overtime over three months.

The three-month rule was a concern for Taipei Department of Labor Commissioner Lai Hsiang-lin (賴香伶), who argued that a worker who was overworked in a particular month might not be legally protected if the employer could argue that the overtime fell widthin a three-month interval that did not exceed the maximum.

The government should better define that portion of the law, Lai said.

There have been frequent discussions about and changes to the labor laws over the past year. Keeping up with the proposals and changes has proven a challenge for both workers and employers. Employers have worked around the rules, often to the detriment of workers. Workers have been confused about whether amendments are to their benefit — a problem further exacerbated by politicians’ rhetoric.

“The government must consider establishing more direct and effective ways of communicating with workers,” Democratic Progressive Party Legislator Wang Ding-yu (王定宇) said.

One might question the need for such complexity in laws governing work time in Taiwan, when other countries have had the issue worked out for decades.

In the US, the issue was first addressed in the Fair Labor Standards Act of 1938. By mandating overtime pay, it discourages having employees work more than 40 hours in a work week. The act does not stipulate a maximum number of hours, but it requires employers to pay time-and-a-half for all hours beyond the first 40 of the week, except to workers employed as bona fide executive, administrative, professional or outside sales employees. The law is flexible by not limiting overtime, but protects workers by discouraging overtime through the mandatory increase in hourly pay.

The flexibility that the Taiwanese government has introduced into the law is more favorable to employers by having different tiers of overtime pay, and allowing overtime hours to be averaged over several weeks and now several months.

This approach introduces unnecessary complexity, creating loopholes that employers could potentially exploit. The more complex the law, the less likely employees are to understand their rights and the more likely they are to be exploited.

Article 153 of the Treaty on the Functioning of the European Union takes an even more worker-friendly approach to legislating work time by mandating a maximum 48-hour work week unless the worker agrees to work more. The EU Working Time Directive 2003 guarantees a minimum of 28 paid holidays per year for EU workers.

Workers in East Asian countries are typically expected to work overtime — usually unpaid — despite laws designed to limit overtime and to require overtime pay.

In principle, Japan has had a 40-hour work week in place since 1987 and under Article 37 of the Japanese Labor Standards Act of 1947, employers are expected to pay workers at least 25 percent more than their regular wages for overtime hours.

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