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A Case Study on the Labor-Management Issue-- Constituting a Contract with a Foreign Teacher

Investigation of a case study:

     Due to the labor-management issues frequently occurring with foreigners in Taiwan, Department of Labor, Taipei City Government, has made a special invitation to Assistant Professor Pen Xie-Yu of the Department Labor Relation of Chinese Culture University, to analyze the contract rights and relationship between employee and employer to clarify issues.

Facts of a case:

     Tony graduated from an American medical school. In June of 2011, his sister-in-law encouraged him to come to Taiwan with a tourist visa. In August of 2011, he signed a contract with the Fantasy Learning Center, hereafter called the Learning Center. It was a cram school. He started teaching English for children September 1, 2011. The contract period was for a year at a time, in which he was scheduled to teach 24 hours a week and he was paid NT$750 per hour.

     As their usual, the Learning Center signed a further contract with Tony the next August and the teaching hours per week were to be decided in accordance with the enrollment situation. In August of 2015, the supervisor of the Learning Center routinely signed a contract to continue with Tony, in which the duration was from September 1, 2015 to August 31, 2016 and the teaching hours were 24 hours per week.

     Tony was not present as agreed upon by contract on June 1, 2016 and the supervisor attempted to but couldn’t reach or contact him. In the end of September of 2016,Tony emailed to inform that he had married his sister-in-law’s cousin just this past July and they went to Thailand for the honeymoon. On the spur of the moment inspiration they decided to stay over in Thailand for travelling and he expressed that he could make up classes when coming back to Taiwan. Consequently, in October of 2016 the supervisor signed another contract with Tony, which was due to end August of 2017, and the teaching hours were 24 hours per week and hourly wage remained the same.

     During August of 2018 the Learning Center signed another contract dating from September 1 of 2018 to August 31 of 2019. When signing the preceding contract in August of 2018, the Learning Center reduced Tony’s teaching hours to 17 hours per week due to a lower enrollment. During October of that year, Tony emailed to the supervisor to resign his teaching job. From October 1 he didn’t go to his class and give a lecture. In November of 2018, he filed an application for mediating a labor-management issue with the Department of Labor, Taipei City Government. Tony claimed that although he resigned himself, the Learning Center was in violation of the Working Contract Law because the Learning Center, without negotiating, reduced his teaching hours for the duration of the contract. Tony requested the disbursement fee for contract termination and the wages for not having used his annual leaves, based on the duration from September of 2011 to October of 2018.

The issue raised: Are there any defects in an expression of intent in a working contract?

     The establishment of an employment contract can be constituted only when the expression of intent of both an employer and employee is reached in an accord. Not only is an employee obligated under contract to express his or her intent to offer the labor, but also an employer must express his or her intent to pay wages. Also, as well, the employment contract can be constituted when both sides reach an agreement on the basic labor conditions. In other words, the employment relationship is based on an accordance reached by an employer and employee. While, the employment contract sometimes occurs with defects when:
there is lacking the capacity to be the party to a contract;
there is lacking the capacity to making an agreement;
there is lacking an accord for the expression of intent;
there is lacking a formation for a contract;
there is a violation of imperative provisions;
there is a violation of public policy or morals;
there is an initial impossibility of performance;
an expression of intent is procured through errors;
an expression of intent is procured by fraud;
an expression of intent is procured by threatening

The expression of intent with a defect can cause the contract not to effectively be followed, and cause the contract to be null and voided or cause the contract to be revoked.
 
Related regulation laws:

     An alien enters Taiwan with the identity of “Residence”, which means he or she resides in the Taiwan Area for a period of six or more months. As to the identity of “permanent residence”, an alien may reside in the Taiwan Area permanently. The related decrees are inscribed in the Immigration Act.

     The application processes for an alien working in Taiwan includes: applying for a work permit from the Workforce Development Agency of the Ministry of Labor, applying for a residence permit for the purpose of employment from the Bureau of Consular Affairs of the Ministry of Foreign Affairs and applying for an alien resident card from the National Immigration Agency. The related contents are inscribed in the Employment Service Act.

     If the person is a foreign spouse and after obtaining an alien resident card, by the Employment Service Act, he or she does not need to apply for a work permit from the Workforce Development Agency of the Ministry of Labor and he or she can work. Other than spousal alien, it is different. A non-spousal alien needs to apply for a work permit from the Workforce Development Agency of the Ministry of Labor before he or she works during the period of residence. In other words, after an alien is a legal resident, he or she can work freely but he or she still needs a work permit granted by the Ministry of Labor. Otherwise he or she is illegally working. The foreign spouse has no such problems.
 
Comments to the case:

     Tony entered Taiwan with a tourist visa in June of 2011. After 2 months he signed an employment contract with the Learning Center and worked as an English teacher for children. The Learning Center signed an employment contract with Tony in August of 2011 when he had not had a work permit granted from the Workforce Development Agency of the Ministry of Labor, so Tony was in violation of the Employment Service Act for illegally working in Taiwan. The employment contract established by both sides had the defect of lacking the capacity to be a party to the contract. In July of 2015 Tony married with his sister-in-law’s cousin, a Taiwan national. Because of his marriage to a Taiwan national, Tony could obtain the rights of a spousal alien resident, by the Immigration Act. He could work without needing to apply for a work permit from the Workforce Development Agency of the Ministry of Labor.

     Tony stayed in Thailand from June 1 of 2016 to the end of September of 2016. He signed a further contract with the Learning Center, of which the duration was from October of 2016 to the end of August of 2017. According to the preceding facts, during the period from September 1 of 2011 to July of 2015 Tony was illegally working in Taiwan. Their employment contract signed had had the defect, so the contract was supposed to be null and voided. Nevertheless, Tony did offer the labor, so he didn’t need to return the salary payment to the Learning Center. As for the Learning Center, who employed an alien without a work permit, the penalty for its involvement in violating the Employment Service Act shall be regarded as another case.
From July of 2015 Tony married with a Taiwan national and got the identity of the alien spouse, with which Tony could work in Taiwan without applying for a work permit. Since then Tony has had the capacity to be a party to a contract, and his job tenure should be protected by the Labor Standards Act.

     Tony stayed in Thailand from June 1 of 2016 to the end of September of 2016, totaling 4 months in time. His employment contract constituted with the Learning Center was from October 1 of 2016 to August 31 of 2017, after which another one year contract was signed and due to end August 31 of 2019. Until the date, October 15 of 2018, when tony resigned himself from the Learning Center, his total tenure at the Learning Center was calculated from October 1 of 2016 to October 15 of 2018. Therefore Tony had the right to claim wages for the special day offs that he had not taken during that time frame.

     As for the reason of resigning, Tony claimed that it was because the Learning Center had forced a reduction to his teaching hours down to 17 hours for the contract from September 1 of 2018 to August 31 of 2019. So, Tony claimed that the Learning Center had to pay him a disbursement fee. Referring to the “contract signed by force” issue, Tony has to offer a strong evidence showing that he was forced, otherwise it could not be regarded as a defect that the accord of expression of intent was not reached. Therefore the employer, the Learning Center, is eligible to refuse Tony’s claims for a disbursement fee.