To promote the five-day work week, starting from January 1, 2016, the statutory working hours have been reduced from 84 hours every two weeks to 40 hours per week. To coordinate the reduction of working hours, the Ministry of Labor published the amendment to Articles 20-1 and 23 of the Enforcement Rules of the Labor Standards Act (the “Enforcement Rules”), which prescribe that overtime refers to the part of working hours that exceeds 8 hours per day or the part that exceeds 40 hours per week. The amended Enforcement Rules also reduce workers’ public holidays from 19 days per year to 12 days. Many labor organizations claim, however, that these amendments to the Enforcement Rules deprive workers of their overtime pay and compensatory leave that workers had enjoyed under the old version of the Enforcement Rules.
When the above amendments to the Enforcement Rules were sent to the Legislative Yuan, the Social Welfare and Environmental Hygiene Committee of the Legislative Yuan, in response to the concerns of labor organizations, resolved on March 28, 2016 to recommend the plenary session of the Legislative Yuan to reject and send back the proposed amendments to the Ministry of Labor, pursuant to Article 62 of the Legislation Yuan Duty and Power Exercise Act. Consequently, on April 8, 2016, the plenary session of the Legislative Yuan passed a resolution to send back the amendments to the Ministry of Labor.
The Legislative Yuan’s main reasons to decline the amendments were: (1) the amended overtime rules violate the principle of ordinary working hours and its legislative purpose under Article 30 of the Labor Standard Act; and (2) the reduction in the number of public holidays implicates the people’s rights and obligations, and as such the principle of legal reservation (as stated in Article 5 of the Central Regulation Standard Act, which requires that matters involving the people’s rights and obligations are to be set forth in statute) requires such important matters to be set forth in statute, not in administrative regulations such as the Enforcemetn Rules. Nevertheless, examining the above reasons given by the Legislative Yuan closely, one might question whether the amendments were really in contravention of Article 30 of the Labor Standard Act and the principle of legal reservation under Article 5 of the Central Regulation Standard Act. First, there is no change as to the calculation methods of overtime under the amendments in question. The amendments merely alter the working hours from “84 hours every two weeks” to “40 hours per week” to reflect the change in statutory working hours. Second, Article 37 of the Labor Standard Act authorizes the competent authority to prescribe the number of holidays and since the competent authority reduced the number of holidays pursuant to Article 37, it is questionable that the reduction in the number of public holidays in the amendments violates the principle of legal reservation.
Under Article 62 of the Legislation Yuan Duty and Power Exercise Act, after an administrative order is reviewed and found to violate, alter or contravene laws, or to have included matters which should be prescribed by statute, the issuing administrative authority shall make an amendment to or repeal the administrative order within two months following the notice of amendment or repeal issued by the plenary session of the Legislative Yuan, otherwise the administrative order will be invalid.
Given the above, as the Ministry of Labor has not modified the amendments to the Enforcement Rules, such amendments are still in force, and enterprises should handle the employee’s leave-taking matters in accordance therewith. However, if the Ministry of Labor fails to revise its amendments by June 8, such amendment will become invalid automatically, in which event enterprises should apply the old version of the Enforcement Rules before its amendment on December 9, 2014, meaning that the number of statutory public holidays will be 19 days rather than 12 days. Given that the statutory working hours have already been shortened, the costs for employers will surely rise if the number of public holidays returns to 19 days. The government should put forward another proposal as soon as possible to balance the rights of employees and employers.