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Implement a Standard Employment Contract for All Migrant Workers!
No to Employment Service Act!
(Paper Prepared by The Asia Pacific Mission for Migrants)

At present, Taiwan’s Council of Labor Affairs (CLA) seems inclined to put migrants working in homes as caretakers and domestic workers under the protection of the Employment Service Act (ESA). At the same time, it wants to retain a model contract for them. Migrant factory and construction workers who are covered by the Labor Standards Law also have model contracts.

Lately, the CLA also has announced that it would want to increase the quota on foreign workers in the manufacturing sector. Their working and living conditions might be worse off than other migrants and those in special economic zones might not be included in the protection of the Labor Standards Law.

At the same time, the CLA has announced that starting September 1 this year new hire migrants together with their recruitment agencies and employers must sign affidavits indicating among others what fees should the migrants pay including loans borrowed from creditors prior to arrival in Taiwan. In effect, the CLA is encouraging the signing of a side agreement that legalizes overcharging of recruitment fees in the guise of loans.

The most controversial proposal of the CLA, though, is the financial management of foreign workers. Its main intent and purpose is to tighten the control on migrant workers by including the banks, which will profit from this scheme, and the CLA itself in the process.

It is thus very important and urgent for migrant workers of all job categories to have a standard and not a model contract to lessen their exploitation from employers and brokers alike. The CLA's refusal to implement such, as it would violate some of its labor laws that allow employers and employees to negotiate for better terms rings hollow.

When have foreign workers been on equal footing with their employers to have any negotiating power? Especially so when their identity papers are confiscated from them, various side agreements are imposed on them, when they are already indebted to recruitment agencies even before deployment to Taiwan, etc.

Let us now look into the CLA's inclination to put migrants working as caretakers and domestic helpers under the protection of the Employment Service Act.

What the Employment Service Act is

As a whole, however, the ESA as described by an article which appeared in Sinorama magazine in September 1999 “seeks to protect the interests of ROC citizens by placing tight restrictions upon employment for foreigners in Taiwan”. (Underscoring ours)

Indeed, the Act which has a chapter for the recruitment and supervision of foreign person(s), only deals with which kinds of job categories they can work, the maximum duration of their stay, and under which circumstances can they be made to change employers. In this chapter, there are even more articles dealing with the employers of foreign persons than with the migrants.

Other contents of the Act include chapters on Governmental Employment Services, Employment Promotion, Private Employment Service and Penal and Supplementary Provisions. The first two caters to marginalized sectors of Taiwanese society, while the third regulates the role of such agencies in the hiring of foreign workers.

As such, how can the ESA which only regulates public and private employment agencies to provide jobs for marginalized sectors of Taiwanese society and foreign workers, ensure the rights and welfare of migrants working in homes even if additional chapters or articles are added to it. This is especially so, if migrant workers specifically those working in homes would only have a model contract to protect them. At the same time, the ESA is only an enactment of the Council of Labour Affairs (CLA) which is under the Executive Yuan and is not a law passed by the Legislative Yuan. Executive decrees can be rescinded anytime and is supposedly patterned after the law but can be unconstitutional and even illegal at times.

The CLA has even arbitrarily reversed its original ruling of an interpretation of a Law promulgated by the Executive Yuan. It pertains to a previous CLA official explanation done on June 1, 1989 that labor federation presidents can take paid leave for work at union federations per Article 35 of the Labor Union Law. In its recent decision on March 8, 2004, the CLA's arbitration panel overruled the Hsinchu County Labor Bureau’s earlier decision in favour of then HCTU union president Chen Kuo-Ling in such an interpretation of the law.

Side Agreements under the Civil Law

And as one Taiwanese lawyer pointed out, since domestic work is not covered by the Labor Standards Law, the general Civil Code or Law will govern. In practice this means, besides the model contract, almost any side agreement which are covered by the Civil Law can be considered legal and binding.

According to then Manila Economic and Cultural Office (MECO) Labor Representative Esther Guirao "side agreements usually involve payment of brokers' fees or placement fees in excess of the prescribed amount, advance collection of brokers fees which under the law are supposed to be paid by the workers on a monthly basis or every three months at the most and no day-offs for a certain period, usually 12 months".

While side agreements covering the first two in the above paragraph can be acted upon by pertinent Taiwanese and Philippine officials if the migrants do decide to complain, the agreement for a no day-offs is another matter. Again, according to the lawyer we consulted, whether the day off provision would be valid depends upon how the courts interpret the open-ended public order or good customs clauses of the Civil Code. Another problem here according to the lawyer is that the courts tend to resolve these issues on a case to case basis.

Side agreements, however, are not the sole problem of migrants working in homes. Even migrants who are under the Labor Standards Law (LSL) are forced to sign side agreements. The lawyer we consulted had this to say. It is likely for an employment contract to be covered by the Labor Standards Law and the Civil Law simultaneously. Anything not covered by the statutory languages of the Labor Standards Law would be governed by the Civil Law.

Even those under Labor Standards Law affected

Another problem for migrants covered by the Labor Standards Law is that they too only have model contracts. The contention of the CLA regarding this is that under their laws, both employer and employee have the right to bargain for better terms for themselves. In reality, however, migrant workers have no or little bargaining power.

In the first place, migrants cannot form their own unions but can only join existing ones. In addition to this, they cannot become officers of a union. As such, they have no collective rights as workers but can only bargain individually. Secondly, migrants can work legally in Taiwan for a maximum of 6 years but at the employer's discretion. Only the employer can decide if the worker can be rehired for the maximum number of years the migrants can stay thus leaving the workers at t he mercy of the former.

For those covered by the Labor Standards Law, besides side agreements, migrants like factory and construction workers have also to follow company rules and even dormitory regulations. The former is supposed to be valid and legal as long as these do not violate the LSL. A number of company rules, however, to be legally binding are made into side agreements.

These include contentious and ridiculous provisions. Two examples include the following:

I agree to sign re-contract for the _________ year. If I don't complete the _________ year extension for violating Regulation, I will meet repatriation and be responsible for costs returning to Philippines and a fine of NT$20,000. All expenses will be deducted from my fix savings.

After my _______ year contract, I agree and authorized my employer to remit my fix savings to my bank account in the Philippines through Metro bank.

The first agreement pertains to breach of contract on the part of the worker. Usually, in their factory any reason even termination by the employer amounts to breach of contract and as such the migrant worker has to pay the fine plus his/her plane fare back home. The latter is the only provision stipulated in the employment contract

The second agreement is about migrants who have been rehired by the same employer after their first three years of work and just need to exit Taiwan as stipulated in the ESA. However, the company has reversed its previous policy of giving the migrants their fix or forced savings before leaving for home. Instead the new provision stipulates that the company will just remit the money to the workers after they have returned home. In a meeting between the workers and the management, the official reason given for this move is th at the company was concerned that the migrants might be robbed upon arrival in their home country.

When we again consulted a lawyer about these two provisions in the re-contract agreement, he had these to say. The NT$20,000 penalty is similar to whether the day off provision stated earlier. To refresh our memories, it also depends upon how the courts interpret the open-ended Public order or good customs clauses of the Civil Code.

With regards to the remittance of the fixed savings, the lawyer stated that "I think those provisions such as remitting fix savings to bank should be held apparently unfair under the totality of circumstances. In reality, due to the open-ended nature of the statutory language, it is contestable at least. Migrant workers must have a good lawyer in arguing this point."

Do migrants have readily available access to legal counsel?

This leads us to another issue. Would migrant workers who have practically very little bargaining position and who are paid the minimum wage be able to hire lawyers for legal consultation and representation in cases that fall under the Civil Law. And if ever, such legal aid is available to them; would they be allowed to stay and work in Taiwan while their cases are pending in court; Third, if they are not allowed to work and have been terminated by their employer, does the Taiwan government have enough facilities and resources to house and feed them?

Even the CLA and a sending country like the Philippines do not even mention that migrant workers have the right to sue their employers and even brokers if certain unjust and exploitative provisions in their side contracts and even in their company rules are imposed on them. CLA provides service centers that render support and counselling assistance to migrants. CLA and even MECO handbook for overseas Filipino workers do not provide information that they can avail of legal services if they want to challenge such agreements.

MECO, on the other hand and some of those working even in NGO's that purport to assist migrant workers even blame Filipino workers if they did sign onerous side agreements either in their home countries or while in Taiwan. Even if it is very evident that such agreements are signed under duress. Philippine Labor representative Esther Guirao stated it very clearly "the fact remains that workers who agree to these illegal arrangements, whether by express consent or by force or deceit, allow themselves to be exploited by unscrupulous agents." To migrant workers it is almost a no choice situation. The placement agency, broker or employer would just say, do you want to work in Taiwan or do you want to go home.

Need for Standard Employment Labor Contract

One way to prevent foreign workers in all job categories from being exploited by being forced to agree to such illegal arrangements would be for them to have a standard employment contract and not just be under the ESA and to have a model contract if they work in homes. The standard contract will ensure that the migrants' minimum rights at least are not compromised or altered by side agreements.

This includes provisions such as having guaranteed day-offs every week and even during statutory holidays for those working in homes as caretakers and domestic workers. No deductions in the minimum wage in the guise of perfect attendance, good performance and the like and no deductions for board and lodging of factory and construction workers. No deductions in the guise of savings, making void all side agreements for all kinds of migrants and ensuring that the passports and ARC of such workers should not be confiscated by their employers or brokers. These should also include scrapping of all unfair and onerous company and dormitory rules and making sure that migrants be given due process in any conflict with their employers and brokers.

A standard contract would also lessen the imposing powers of placement agencies, brokers and employers now have over foreign workers. We cannot just let an executive decision especially from the CLA decide the fate of the almost 300,000 foreign workers in Taiwan.

The rights and welfare of migrants have not improved but worsened these past years. Unlike in the past, migrant workers now need even to pay for their own air fare, ARC, and other expenses. Those under the LSL have seen their wages deducted because they now need to pay for their board and lodging. The chances of migrants being transferred to another employer have been reduced by half. Many brokers and employers continue to violate regulations like overcharging of fees, imposing forced savings, confiscating the ARC and passport of their workers to name a few.

It is thus necessary for the migrant workers themselves coming from different nationalities to arouse, organize and mobilize in their thousands in order for them to have a standard employment contact. Rights are not given on a silver platter but are fought for. The rights being enjoyed by migrant workers such as in Hong Kong were a result of the painstaking organizing work they did in the last two decades. Organized migrant workers can press their own governments to support their campaign to request Taiwanese authorities to grant their demands. More advocates like local trade unionists, academicians, students, NGO workers, lawyers, and church people can be harnessed to support us if they see that we ourselves are strong and organized.

The proposal into which what kind of protection migrants working in homes should have is at a time when various anti-worker legislations are being hammered out in the Legislative Yuan. Migrant and local workers should act and unite in these difficult times. Their rights as workers are under attack. We do not want to see the sad experience both had as a result of the Economic Development Advisory Conference (EDAC) in August 2001, wherein local workers had to swallow flexible working hours and migrants had to have wage cuts to pay for their own board and lodging#