Newsletter
Impact and after the Abolishment of the Guidelines on Day/Night Shift Work
In response to the business needs of employers to have their employees work shifts and to protect the health and welfare of employees, the Ministry of the Interior promulgated the Guidelines on Day/Night Shift Work (the "Guidelines") on December 5, 1985. The Guidelines were amended by the Ministry of Labor on August 11, 2019 and further abolished on January 1, 2022.
Under the Guidelines, day/night shift work was not deemed regular working hours; therefore, the remuneration for shift work was not subject to the statutory requirements but to the negotiation between an employer and its employees. The Guidelines merely stated that it would be advisable that the remuneration for shift work not be lower than the amount calculated by multiplying the actual hours of shift work by the hourly basic salary (i.e., the monthly basic salary divided by 240). After the abolishment of the Guidelines, shift work are deemed work hours under the Labor Standards Act (the "LSA"), to which the statutory requirements apply. Accordingly, if an employer requests an employee to work on a day or night shift, the employee must comply with the statutory requirements on regular work hours and overtime work and pay.
The LSA does not provide specific provisions on the determination of work hours. As to whether the hours that an employee is on standby, call-out or on-call beyond regular work hours should be counted as work hours and whether the employer is thus required to pay salary for such hours, the answers to such questions are subject to the interpretations of the competent authorities and relevant court rulings and judgments. According to a civil judgement rendered by the Taiwan High Court (Ref. No. 104-Jhong-Lao-Shang-Geng-I-7) in 2015, there are four types of work hours:
1. Actual work hours: the hours during which an employee actually provides services.
2. Call-out hours: the hours during which an employee can expect a high possibility of having to provide services but might not be asked to do so.
3. Standby hours: the hours during which an employee should be ready to provide services at all times and is therefore required to be physically present at a certain designated location. However, during the standby hours, the possibility of an employee being asked to provide services during standby hours remains low.
4. On-call hours: the hours during which an employee is required to remain available to be called out to work while it is highly unlikely for the employee to be called out to work. During such hours, an employee is only required to leave his/her contact information in case the employer needs him/her to provide services. A certain amount of commuting time is allowed between an employee receiving the employer's call to work and the employee actually providing the services.
Please note that rest hours are hours during which an employee is not required to provide services or be prepared to provide services and thus are not work hours.
During standby hours and on-call hours, even though the possibility of the employees having to provide services is not high, some courts have ruled that all standby hours should be considered as work hours, while the number of on-call hours during which an employee had actually provided services should be considered as work hours. The factors on which the courts made such distinction between standby hours and on-call hours seems to be whether the employee is required to be physically present at a designated location, and whether the employee is required to show up immediately after the employee receives the employer's call to work (“Factors”). Accordingly, the Factors apply in determining whether shift work should be treated as standby hours (for which the employer would have to pay salary for all such hours), rather than on-call hours (for which the employer is required to pay salary only for the hours that the employee actually provides services).