新聞聯絡人：台灣國際勞工協會 吳靜如 0928- 557- 481
On April 6 of this year, 31 Filipino migrant workers from WUS PRINTED CIRCUIT CO., LTD. (WUS Co.) complained to the 1955 MOL hotline, that the employer had an unclear salary structure, insufficient overtime pay, no bilingual pay slips, food and lodging fee deduction problems, tax deduction problems, etc., and they suspected they were violating labor laws. Because WUS Co. is located in the export processing zone (EPZ), the Labor Bureau of Kaohsiung City Government (Kaohsiung BLA) did not handle this case, but only forwarded it to the EPZ Administration.
However, the handling of labor disputes by the EPZ Administration is absurd, and the labor authority, Kaohsiung BLA, which is supposed to be more familiar with labor laws and regulations, has turned a blind eye to it. They constantly question migrant workers in a flippant tone, trying to dispel migrant workers’ motivation to pursue disputes.
In a situation where the number of labor inspectors is generally insufficient and the government will not initiate labor inspections, labor disputes over rights violations are the final guarantee of labor rights and the smallest law enforcement action by the labor authority. But within the jurisdiction of the Kaohsiung city government, even this smallest enforcement act seems to be fraught with problems.
【時間順序表 Chronological Table 】
|日期 Date||事件 Events|
|4 / 6 April 6||楠梓電移工向1955申訴表示，有關於薪資結構不明、加班費給付不足、薪資單無雙語、膳宿費、稅款等等問題，資方涉嫌違反勞動法規。 WUS Migrant workers complain to 1955 that they suspect their employer of violating labor laws and regulations regarding issues such as unclear salary structure, insufficient overtime pay, lack of bilingual pay slips, board and lodging, and taxes.|
|4 / 12 April 12||高雄市政府函轉「加工出口區管理處」。 Kaohsiung BLA forwards this case to the EPZ Administration.|
|4 / 14 April 14||加工出口區管理處回文（經加四勞字第1110003711號函）重點簡述如下： 有關薪資給付、加班費等，還需要調查。說明三：該公司提供移工母國文字之薪資明細……但雇主提供薪資明細表之語文類型部份，法尚無明文規定，故建議台端可循勞資協商方式處理。說明四：若台端有勞資關係或權益受損相關問題，建議可至本處申請協調或調解，以維自身權益。 The key points of the official document sent in reply by the EPZ Administration (Jing Jia Si Lao Zi No. 1110003711) are briefly described as follows: 1. about the salary payment, overtime pay, etc., the EPZ Administration needs to do the investigation. 2. Explanation 3: The company provides salary details in the language of the migrant workers’ home country… However, the language of the salary details provided by the employer is not clearly stipulated by law, so it is suggested that you can deal with it through labor-employer negotiation. 3. Note 4: If you have issues related to labor relations or rights damage, it is recommended that you apply for coordination or mediation at this office to protect your rights and interests.|
|5 / 3 May 3||加工出口區管理處回文（經加四勞字第1110102233A號函）重點簡述如下： 說明二：加班時數超過46小時，涉嫌違法。請公司10日內陳述意見；其他申訴項目都查無違反勞動法令規定。說明三及說明四，同上函。 The key points of the replying official document from the EPZ Administration (Jing Jia Si Lao Zi No. 1110102233A) are briefly described as follows: 1. Explanation 2: Overtime over 46 hours is suspected of breaking the law. They are asking the company to state their opinion within 10 days; all other complaint items have not violated labor laws and regulations. 2. Note 3 and Note 4, same as the previous official document.|
|5 / 19 5 / 24 6 / 8 May 19 May 24 June 8||高雄市勞工局人員打給勞工說明，重點及影響移工權益部份節錄如下： 重複強調，加工出口區已調查回覆，除加班時數涉嫌違法，將讓公司說明外，其他沒有違法。多次重複強調，膳宿費係根據最後一份同意書做決定。公司曾經提供翻譯，就符合薪資單雙語的規定。調查後的結果，不可能告訴勞工。有政府部門調查後的報告，勞工局不會對其提出反對。強調政府部門的分工：勞工局負責轉案、加工出口區負責調查，但是，加工出口區沒有通譯人員，沒人可幫移工。勞工要求面對面開會，勞工局一直以疫情及太多人難立即解決為由阻止。 The Kaohsiung BLA explains to the workers the key points and the impacts on the rights of migrant workers as follows: 1. It is repeatedly emphasized that the EPZ administration has done the investigation and replied. Except that the overtime hours are suspected of being illegal, and the company will have to give an explanation,there is no violation of the law. 2. It has been repeatedly emphasized that the food and lodging fee is determined based on the last consent form. 3. The company once provided translation, which is in line with the bilingual regulations of the payroll. 4. The results of the investigation cannot be communicated to the workers. 5. The Kaohsiung BLA will not object to the report after the investigation by the government department. 6. The division of labor between government departments is emphasized: the Kaohsiung BLA is responsible for transferring cases, and the EPZ administration is responsible for investigation. However, there are no bilingual interpreters in the EPZ administration and no one can help migrant workers. 7. Workers ask for face-to-face meetings. The Kaohsiung BLA has used the excuses of the epidemic and that that there are too many people involved to solve the problems immediately to block this request.|
分工而不合作 Division of labor but without cooperation
First of all, our first question is, what is the division of labor between the Kaohsiung BLA and the EPZ administration?
As far as courts are concerned, two courts with jurisdiction should both have the responsibility to handle the same case; in the absence of special provisions, it is up to the plaintiff to choose. However, the Kaohsiung BLA explained to the migrant workers over the phone that since WUS Co. is in EPZ, the EPZ administration would have to deal with labor disputes. However, what kind is the legal basis of this division of labor? Why can’t migrant workers choose to file a complaint with the Labor Bureau, and can only be forced to have their cases handled by the EPZ administration that has no interpreter?
When the migrant workers called 1955 to file a complaint, 1955 transferred the case to the Kaohsiung BLA. How can it be that the Kaohsiung BLA was only responsible for transferring the case to the EPZ administration? If this is the case, not only is the choice of channels for grievance restricted, but also, if the case must be transferred all the time,wouldn’t the extra labor, time and money spent during this period be a waste of public funds? And doesn’t this increase the time migrant workers have to bear the pressure from employers and brokers, and also delay the processing time of appeal cases?
Looking at the transcript of the conversation between the Kaohsiung BLA and a migrant worker (in the box below), we can see that the EPZ administration does not even have a bilingual staff member. We can’t help but ask, if the EPZ administration DOES have the responsible for handling complaints from migrant workers, how come they have not had a single bilingual staff member for 30 years? If so, how have the related disputes over the past 30 years been handled?
勞工 worker：So the Nanzi processing zone office is near last. I mean, it’s here in Nanzi office one, right? What I mean is the Nanzi processing zone office investigate. Right, maam.( Yes.) So where is the office of the Nanzi processing zone? Ma’am.
勞工局人員 Kaohsiung BLA ：In Nanzi.Okay? If you want to talk to them and you need to go to their office, during… it depend the covid-19 situation, can you get inside or not? I don’t know.
勞工worker：Okay, or maybe…
勞工局人員Kaohsiung BLA：if you don’t believe me, you can call, you can let MECO to know, and let the MECO call to the Nanzi processing zone. Do you understand what I mean?
勞工worker：I understand. So maybe I can direct to the…
勞工局人員Kaohsiung BLA：because if you cannot, because the Nanzi processing zone office, no translator, even if you talk to them and talk to them or go there to looking for them, but no one can communicate with you and how come? who? who can help you? OOO, can you talk to me in Chinese now? could you?
you can go and you can ask somebody, okay, who is the personal in charge about this case? But if they cannot to communicate with you, I’m so sorry. We are not in there. We don’t know how to help you to talk with them…
In addition, the two official letters from the EPZ administration mentioned that “if you have issues related to labor relations or damage to rights and interests, it is recommended that you apply to this office for coordination or mediation to safeguard your own rights and interests.” – In the EPZ administration, there is no bilingual translator, and the Kaohsiung BLA is not there and cannot assist. So how can migrant workers know and exercise this right? How did the authority in charge explain this to workers? How do migrant workers apply for coordination or mediation? How have coordination meetings or mediation meetings been conducted over the past 30 years?
不合法的法令解釋 Illegal statute interpretation
Furthermore, we also have to ask, when two government units are both labor administration authorities in charge of handling a situation, and one government unit clearly violates the law, how should the other unit handle it?
On April 6, a worker complained to 1955; on April 12, the Kaohsiung BLA transferred the case to the EPZ administration; two days later, the EPZ administration replied and sent a copy to the Kaohsiung BLA, writing, “As for the salary details provided by the company in the native language of the migrant workers…but the language of the salary details provided by the employer is not clearly stipulated in the law, so it is suggested that the worker can deal with it through labor-employer negotiation.” It is obvious that the EPZ administration here is acting contrary to the interpretation of the statute (detailed below). Can the Kaohsiung BLA choose to “close their eyes and stay silent”?
高市勞局人員在回覆勞工的對話裡這麼說 Kaohsiung BLA said this in a reply to the worker：
okay? We already to learn the Nanzi processing zone,ok? and did some procedure first, and they already answer. We wouldn’t against them, because they say, no more problem. We just depend their report and answer. After investigation from another government department, they say no more problem. We just only and say no more problem about your company.
The Kaohsiung BLA, as the “local labor authority”, will not raise any objection to the investigation and decision made by the EPZ administration – is this how the Kaohsiung City Government usually acts? What is the legal basis for choosing to do so? If civil servants do not correct nor report when they see a violation, are they not suspected of malfeasance or profiteering? Are there no administrative responsibilities?
Perhaps we can gain a little understanding from the Kaohsiung BLA’s explaination to the migrant workers: the Kaohsiung BLA may “not only fail to do it, but even be unable to do it.” That is to say, seeing the explanation of the regulations for migrant workers by the Kaohsiung BLA, we seriously suspect that the Kaohsiung BLA’s understanding and implementation of the relevant laws and regulations are not in line with the regulations at all.
Below, we give some examples of the doubtful points that Kaohsiung BLA explained to workers, as mentioned in the “chronological table”:
- 移工膳宿費問題 about the food and lodging fee for migrant workers：
The Kaohsiung BLA repeatedly emphasized in their instructions to multiple workers that the food anf accommodation fee must be determined according to the last agreement signed between the laborer and the company.
然而，勞動部早在2013年便有解釋令〈勞職管字第 1010036916 號函〉「要旨：雇主原則上應依勞動契約給付約定工資、按約定金額扣除膳宿費及按約定負擔外國人來臺（返國）機票費，主管機關於實施工資檢查時，倘發現勞動契約約定之內容與工資切結書約定內容不一致，應以較有利於外國人之約定，作為工資檢查之準據。」
However, as early as 2013, the Ministry of Labor issued an interpretative order “Letter No. 1010036916”, “Gist: Employers should, in principle, pay the agreed wages according to the labor contract, deduct the board and lodging expenses according to the agreed amount, and pay the airfare for the foreigners to come (or return to the country) according to the agreement. When the competent authority conducts wage inspection, if it finds that the content of the labor contract is inconsistent with the content of the wage affidavit, the agreement that is more favorable to foreigners shall be used as the basis for wage inspection.”
Regarding the food and accommodation fee for migrant workers, the only two valid documents currently recognized by the Ministry of Labor are the “Labor Contract” and the “Foreign Worker’s Affidavit for Wage / Salary and Expenses Incurred before Entering the Republic of China for Employment “; and it is clear from the above interpretative order that in the event of conflicting contents between the two documents, “the agreement that is more favorable to foreigners” shall prevail. Why then does the Kaohsiung BLA still use the so-called “the last agreement shall prevail” argument over and over?
2.雙語薪資單問題 about the Bilingual Payroll：
The Kaohsiung BLA explained to the migrant workers that the company once provided translators, which was in line with the bilingual regulations on payroll. However, according to the first paragraph of Article 66 of the “Regulations on the Permission and Administration of the Employment of Foreign Workers”: “The wages paid by the employer to the second category foreigner or the third category foreigner, in accordance with the labor contract, shall be accompanied by the salary statement in Chinese as well as the foreigner’s native language”, that is, when the employer pays wages, the salary statement should be bilingual. The Kaohsiung BLA has exceeded the translation regulations and made the interpretation that “the translation is legal if it is provided.” What legal source is this interpretation based on?
3. 調查結果問題 about the result of the investigation：
But when we punish your company, we wouldn’t tell you all, oh, your company violate regulation. So you can have a party. no, that’s impossible. Do you understand what I mean?
Article 33, Item 1 of the Labor Inspection Act states, “Upon accepting a complaint from worker(s), the labor inspection agency shall initiate, according to the nature of the complaint, an inspection by labor inspector(s) as soon as possible, and shall notify the complainant(s) the results of the inspection within fourteen days. ” The Kaohsiung BLA, even if it is not aware of this item, at least should know about the Labor Standards Act, right?
Article 74, Paragraph 4 of the Labor Standards Act stipulates that “Upon receipt of a complaint of the type from the first paragraph, the authority in charge or the inspection agency shall conduct the necessary investigations and notify the worker in writing of its handling within sixty days. ”
It is true that workers do not need to hold parties, because obeying the law, properly enforcing the law, and punishment are only the basic duties of law enforcement agencies. What does the Kaohsiung BLA mean? We are puzzled, Kaohsiung BLA, please explain!
罔顧移工權利 Disregarding migrant workers’ rights
Kaohsiung is the city with the fourth largest number of migrant workers in Taiwan, and Taiwan has been bringing in migrant workers for 30 years. However, the two government agencies under the jurisdiction of the Kaohsiung City government that are responsible for labor disputes are not only lazy in procedure, but also distort legal provisions and ignore legal matters. Not to mention the “Two Conventions” that have been legalized in Taiwan, and even the “Labor Standards Act”, “Employment Services Act” and related decrees that have been legislated for a long time and should be “administered according to law.” The government agencies still interpret regulations illegally, and they do not even know the relevant regulations! Such lazy administrative agencies that trample on the basic labor rights of migrant workers — it is really outrageous!
我們要求 Here we demand：
The “Kaohsiung BLA” and the “EPZ administration” should invite relevant migrant groups as soon as possible to hold a briefing session on their powers and division of labor, and explain the above-mentioned illegal interpretations!
— 3楠電WUS/本案勞工migrant workers（Jories, Richelle, Delfin）
— Domestic Workers Union (DCU) -Tisay
New Kaohsiung City Federation of Trade Unions (nkcftu)
— 高市產總 （林順基）
Kaohsiung City Confederation of Trade Unions (kcctu)
worker of young an fishermens association
Gabungan Tenaga Kerja Bersolidaritas（ganas）
Taiwan Association for Human Rights
Yulin County Federation of Trade Unions
— 台灣國際家庭互助協會 Taiwan International Family Association (tifa)
Labor Right Association
Educational Association for Rural and Urban Taiwan
— 高雄市人民團體聘僱人員職業工會Kaohsiung City NGO Employees’ Union
The Union of Kaohsiung Educare Professionals
Alliance of Educare Trade Unions
Union of Childcare and Education in Kaohsiung
Union of Childcare and Education in Pingtung
Not-for-Profit Organization Industrial Union
左翼聯盟 The Left Party
新海瓦斯工會 Shinhai Gas Trade Union
新國際理論與實踐中心 New International
海潮智庫 Peacewave Think Tank