Thu, Jan 11, 2018 page3

• ANALYSIS: Labor changes draw praise, criticism from academics

  • By Sean Lin / Staff reporter
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  The amendments to the Labor Standards Act (勞動基準法) that passed their third reading yesterday have drawn mixed responses from academics, with some lauding a potentially greater flexibility in working hours and others expressing concerns over them aggravating overwork.

  Asked to comment, National Chengchi University College of Law associate professor Lin Chia-ho (林佳和) said he could not approve of them, as it would further increase overtime in some sectors.

  Lin questioned the need to amend Article 32 of the act, which conditionally raised the monthly overtime cap from 46 to 54 hours with the proviso that a worker must not put in more than 138 hours of overtime in three months.

  Monthly overtime across all sectors last year and in 2015 averaged less than 40 hours, he said, citing Ministry of Labor statistics.

  The amended Article 32 derived its inspiration from the deposited working time account policy introduced by the German government in 2002, but the article completely failed to capture the essence of the German policy, which is meant to prevent people from being overworked rather than encourage overtime, Lin said.

  Workers in general consider themselves to be overworked if they have to work 46 extra hours a month, he said, adding that for several decades society in general has recognized the 46-hour ceiling on overtime as the maximum limit.

  “We should all think about the rationale behind the 40-hour workweek. Is it a goal we strive toward, or is it the bare minimum?” Lin said.

  “In Taiwan, people treat it as the bare minimum and a lot of discussion was focused on how to reach the 46-hour limit and even go beyond it. This is the crux of the matter,” he said.

  On a lighter note, the raised overtime cap is expected to only affect workers in sectors that require them to work extreme overtime and is unlikely to affect the majority of workers, whose overtime normally runs under the 46-hour ceiling, he said.

  Regarding amended Article 36, which allows employers to make employees work for up to 12 consecutive days by moving their weekly fixed days off to the beginning and end of a 14-day period after gaining the consent of unions or employees, Lin said that the wording of the article might have created a “dangerous” loophole that could normalize a 12-day workweek as long as applications by sector associations pass a review by local labor authorities.

  The loophole contradicts a legal interpretation issued by the ministry on Sept. 22, 2016, which allowed only a handful of sectors to work for more than six consecutive days under special circumstances and mandated that workers’ schedules be restored to their normal condition once the need for overtime is eliminated, Lin said.

  The impact of the amendment would have to be gauged by how strictly local authorities review applications by sector associations, he said.

  Lawyer Chen Yeh-shin (陳業鑫), a former Taipei Department of Labor commissioner, lauded the introduction of Article 32-1, which offers workers the option to receive compensatory leave in lieu of overtime pay.

  The article also stipulates that employers should pay employees overtime for any unused compensatory leave resulting from overtime, which Chen called an improvement, as there had not previously been a rule covering the disposition of unused compensatory leave.

  He said that while he supported the amendment to Article 34 that conditionally shortens the rest time between shifts from 11 to eight hours, the amendment should have excluded certain sectors, such as nursing and public transportation, to avoid threatening public safety.

  Taiwan Higher Education Union secretary-general Chen Cheng-liang (陳政亮) said the amendment should never have been proposed.

  The provision that allows workers to choose between overtime pay and compensatory leave was passed with no safeguards in place, meaning companies do not need to pass a review by local labor authorities before offering employees such options, Chen said.

  This could have a negative effect on all 9 million workers nationwide, as it tempts companies to overwork their employees.

  The article originated from a legal interpretation issued by the ministry in June 2016, but now that the interpretation has been passed into law, it would likely cause greater harm to workers, he said.

  The rule, in conjunction with Article 36 and the trimonthly overtime cap, would allow firms to make their employees work excessively during peak seasons, he said.

  While most people prefer money to compensatory leave, employers often impose their will on employees, who almost always have the short end of the stick when bargaining, meaning that most workers would likely be forced to accept compensatory leave, he said.

  This provision also saw the Cabinet contradict itself, considering that Premier William Lai (賴清德) used workers being denied opportunities to earn overtime pay under the now-defunct overtime pay calculation rules as a pretext to amend the act, but has now opened up a backdoor for firms to keep avoiding paying for overtime, he said.

  The amendments would also aggravate the problem of low wages and perhaps even the nation’s low birth rate, since increased working hours compounded by no overtime pay will drive down workers’ hourly wages, making people more reluctant to have children, Chen said.
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