Photo credit: Riley Tsang

Organized by: Migrant Empowerment Network in Taiwan (MENT)

30 years of exploitative law; Green and Blue both ignore the problem

In 1992, Taiwan’s government implemented the Employment Service Act, which institutionalized the policies for recruiting and managing blue collar migrant workers in Taiwan, including a regulation that deprived migrant workers of their basic labor right of “freedom to change employers.”

The freedom to change employers is a fundamental labor right that distinguishes a “worker” from a “slave,” as it allows workers to avoid “forced labor”[1] conditions. However, the current standard 3-year contract for migrant workers restricts migrant workers from freely changing employers,[2] creating a form of “modern slave labor.”

The ruling party in Taiwan’s government has changed 3 times over the past 30 years, but this outdated policy is still in place. Even the current Tsai Ing-Wen government, which rallies its supporters under the banners of “freedom,” “human rights,” and “progress,” has perpetuated this backward policy that oppresses over 700,000 migrant workers throughout the 6 years it has been in power.

Migrant workers leave their homes and loved ones and come to Taiwan, but even when they face horrifying working conditions or abusive treatment at the workplace, they are unable to “resign” as a last resort protest in the same way as local workers. For a migrant worker, “resignation” usually means deportation, and they will also be faced with a huge debt because they have not been able to pay off their placement fees.

Using the epidemic as an excuse for enslavement; Labor rights regress by 13 years

Starting in 2002, the restriction on freely changing employers was slightly loosened, as the government adopted a “prohibited in principle, allowed in exceptional cases” practice.

In 2003, the Ministry of Labor drafted the “Directions of the Employment Transfer Regulations and Employment Qualifications for Foreigners Engaging in the Jobs Specified in Items 8 to 11, Paragraph 1, Article 46 of the Employment Services Act” (hereafter referred to as “Transfer Guidelines”). These guidelines stipulate the procedure for migrant workers in exceptional cases to transfer employers. They also stipulate that the Public Employment Service Agency should follow the migrant worker’s original type of work when managing migrant worker employer transfers: that is, migrant workers are “restricted from transferring between industries.”

In 2008, the Ministry of Labor amended the “Transfer Guidelines” to include exceptions for“Cross-Industry Transfers.” It also added a clause which enables workers and employers to signWhen the employers meet the requirements designated in the previous article, subparagraph 1, item 1 or 2, and apply to consecutively employ a foreign worker. without going through the Public Employment Service Agency.

These conditions were still extremely strict.  A migrant worker could only have the possibility of “transferring between industries” if an employer applied to “consecutively hire” a worker and also met all the requirements to do so.. However, for domestic care-givers, whose working conditions are not legally protected, and for migrant fishermen who are abused despite being protected under the Labor Standards Act, the exceptions at least offered a slim possibility to switch industries to factory work and obtain a better working environment.

However, on August 27, 2021, the Ministry of Labor undid 13 years of gradual progress by re-tightening the conditions for “cross industry transfer.”  From the beginning, MOL did not recognize the flaws of the policy, ignored long years of the civil society’s demands for “Open Free Employment Transfer for Migrant Workers,” and reversed the progress on migrant worker rights back to its original pre-2008 status.

 Transferring employersCross-Industry Transfers
2002prohibited in principle, allowed in exceptional casesprohibited
2008prohibited in principle, allowed in exceptional casesemployers with specific qualifications are able to carry out cross-industry transfers Cross-Industry Transfers permitted under “Two-party Agreement” or “Three-Party Agreement”.
2021prohibited in principle, allowed in exceptional casesMigrant workers must first register for transfer at a Public Employment Service Agency, and can only initiate a cross-industry transfer if no employers from their original industry seek workers at the agency for 14 consecutive days. “Two-party Agreement” or “Three-Party Agreement” are no longer valid for cross-industry transfer.

Without the freedom to change employers, becoming a “Runaway” migrant worker becomes the only option to survive.

Migrant workers who come to Taiwan are burdened with enormous economic pressures: not only do they have to support their families’ livelihoods, but they also have to pay off placement fees in order to come to Taiwan. As migrant workers are currently restricted from freely transferring employers or industry, what other choices besides becoming a “runaway” remain for those whose salary isn’t enough to meet these pressures or who face abusive working environments?

Unlike local workers, migrant workers do not have any formal channel to negotiate “resignation” with employers. This could be attributed to the outdated, malicious law which has been in place for 30 years that forcibly and  violently strips away the migrant workers’ rights to “quit and change jobs,” and transfers it to the employer, maximizing the employer’s power in labor relations.

For example, even when the migrant worker has sufficient evidence to prove the employer violated labor laws and regulations (including excessive overtime, insufficient overtime payment, illegal work, no providing of proper food and lodging), the employer still has the right to “refuse” permission for the migrant worker to change employers or employment. When this happens, the migrant worker can only file a complaint to the central labor authority (MOL) and appeal for transfer.  They are then  held in “forced unemployment” while the MOL reviews their appeal, without any unemployment subsidy, often for over 6 months.

Unlike local workers, migrant workers are not allowed to seek alternative employment or livelihoods while engaged in labor disputes. On top of this, they have to deal with, language barriers and unfamiliar laws and regulations. Migrant workers are often left with only two choices: silently endure, or run away—both of which place migrant workers in an extremely exploitable position.

The ICCPR and ICESCR have been implemented for 12 years, still no freedom to change employers

In April 2009, the Legislative Yuan passed the “Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights” to declare to the international community Taiwan’s determination to comply with international standards of human rights.

However, according to Article 53 Item 4 of the Employment Service Act, migrant workers “must not change employers or jobs”. This Item clearly violates Article 6 Item 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which recognizes that “everyone has the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”

In its general comment No. 18, the Committee on Economic, Social and Cultural Rights (CESCR) further explained the definition of the right to work, and specifically emphasized in the fourth paragraph, “The right to work, as guaranteed in the ICESCR, affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly. This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the importance of work for personal development as well as for social and economic inclusion.”

In the concluding observations of the initial national report review of the implementation of ICESCR and CESCR in 2013, the international review committee pointed out that the rights of foreign migrant workers in Taiwan have been abused and underprotected, especially via the “restrictions on changing employers.” Therefore, the review committee reminded the Taiwan government that “It is necessary to expand the right of migrant workers to freely change employers.”

However, since 2013, the right of migrant workers to change employers has not only not been extended, but has been restricted during the 2021 COVID pandemic! It has been 12 years since ICESCR and CESCR were implemented, but the right of migrant workers to change employers has not been protected nor restored. It is obvious that the Taiwanese government signed the two covenants only to improve its “international image” without the determination to truly implement them, and they even ignored the observations of the international review committee!

The Ministry of Labor takes the side of capitalists and repeats the same old excuses

When faced with demands for “free transfer for migrant workers,” the Ministry of Labor commonly responds by citing “a lack of social consensus” and “a bad influence on the stability of employment.”

First of all, we have to seriously question the Ministry of Labor: besides the capitalists and brokers who benefit from restricting blue collar migrant workers from transferring employers or jobs, who else actually objects to the right of free transfer for migrant workers?

In 2010, during a legislative inquiry, KMT legislator Zheng Liwen (鄭麗文) asked Wang Ruxuan (王如玄), then the  Chairperson of the Council of Labor Affairs, when the free transfer for migrant workers will be allowed, and Wang Ruxuan (王如玄) expressed his support for free transfer.

In 2014, the research results of a study, “An Analysis and Exploration on the Reasons for the Missing Foreign Workers,” commissioned by the Ministry of Labor, suggested “a gradual introduction of the free transfer system.” Meanwhile, the research results of the study “A Study of the Direction of Transformation of Foreign Workers Policy for the Next Ten Years,” commissioned by  the National Development Council, also suggested “relaxing the regulations  forbidding free transfer for foreign workers.”

An investigative report by the Control Yuan in 2018 also pointed out that “if foreign workers intend to terminate the employment contract, they need to sign a two-party agreement with the employer and complete the certification process.  Alternatively, if the reason for the termination of contract is not the fault of the worker, they can apply for approval from the MOL.  Only then will the worker obtain the right to transfer to a new employer.  Under unequal power relations, it is extremely difficult to terminate a work contract.  So even if they are being sexually abused, most migrant workers will choose to either bear it in silence or run away….”

On October 2020,  Deputy Minister of the Ministry of the Interior, Ciou Chang-yue (邱昌嶽) ,when giving a report on a project of the Social Welfare and Environmental Hygiene Committee of the Legislative Yuan, frankly suggested that the Ministry of Labor “eradicate the root of the problem of so-called runaway migrant workers byopening up free transfer of employers to migrant workers and giving them the chance to choose their jobs.”[3]

Still more research recommendations of countless other scholars have all clearly pointed out the absurdity of the current regulations and the resulting problems. Nonetheless, the Ministry of Labor continues to repeat the excuse of “a lack of social consensus.” We cannot help but ask, isn’t this all for securing the profits of capitalists at the cost of the basic labor rights of migrant workers?       

Secondly, we also have to sternly tell the Ministry of Labor,regulating that “blue collar migrant workers may not change employers or jobs”  actually causes “employment instability.”

What are the prerequisites for “employment stability”?  Employers provide decent working conditions, and employees choose jobs of their own free will.

However, restricting blue-collar migrant workers from transferring employers or jobs results in unequal labor relations. As migrant workers are unable to freely choose to stay in or change jobs, employers are under no pressure to improve working conditions, leading to a lack of improvement in Taiwan’s overall labor environment.

As far as the employers of migrant workers are concerned, they don’t need to consider how to improve working conditions and retain the migrant workers, because the Taiwanese government has long used the “rule of law” to restrict migrant workers, enabling the employers to exploit them as cheap labor to make profits and accumulate capital.

However, as this current system ultimately deprives migrant workers of their basic labor rights, it creates inequitable labor relations, forces migrant workers in exploitative situations to suffer or run away, and stagnates the improvement of working conditions in Taiwan. The only beneficiaries in this situation are those with money and capital: and this is the real root of “unstable employment.”

Migrant Workers’ Rally -Give Freedom Back to Migrant Workers

In this march for migrant workers’ rights, we rally against outdated and unfair regulations that have been in place for the past 30 years. We call for the repeal of Article 53 Section 4, “(Blue-collar migrant workers) may not shift to a new employer or new work”, granting blue-collar migrant workers the freedom white-collar and local workers have, to change employers according to their own needs and wishes.

We will stop at the DPP headquarters to protest against Tsai Ing-wen’s government, which has been in power for the past six years. We will wave banners and chant for freedom and human rights. The DPP has only been perpetuating the inequitable policies created by the KMT 30 years ago, and using the pandemic as an excuse to restrict migrant worker rights even more.

Finally, we will gather at the Ministry of Labor to protest.  The MOL constantly claims that migrant workers in Taiwan are treated as citizens (according to the “national treatment priniciple”), but in reality, they maintain the regulation that “blue collar migrant workers may not change employers or jobs” to benefit the employers.  They just keep on steamrolling over the rights of migrant workers while amplifying the voices of the capitalists!

We demand the DPP regime and the Ministry of Labor immediately rethink Article 53 Section 4 of the Employment Service Act, and grant migrant workers the freedom to “change employers or jobs”. This is not only the most basic labor right for migrant workers, but also the key to improving Taiwan’s overall labor environment.

Repeal Article 53 Paragraph 4 of the Employment Service Act! Migrant workers must have the freedom to change employers!

Members of MENT:

Stella Maris

PCT. Peace Foundation Labor and Migrant Workers Concern Centre, LCC

Hsinchu Migrants and Immigrants Service Center, HMISC

Hope Workers Center, HWC

Caritas Taiwan

Taiwan International Workers Association, TIWA

[1] The “Combating Forced Labor: A Handbook for Employers and Business,” published in 2009 by the International Labor Organisation, lists many forms of forced labor. These include “forced labour linked to exploitative labour contract systems: This can be found almost everywhere in the world today. For example, migrant workers can find themselves “bonded” to a labour contractor because excessive fees have been charged and with limited if any possibilities to change the employer once they arrive in the destination country.”

[2] The current policy, “prohibited in principle, allowed in exceptional cases”, allows migrant workers to transfer employers only if they meet the grounds listed in Article 59 of the Employment Service Act.

[3] The number of runaway workers is increasing; the Ministry of Interior suggests that the Ministry of Labor open up free transfer of employers for migrant workers

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