MINISTRY OF LABOR CLARIFIES LEGISLATION ANOMALIES|勞基法新舊制銜接 部分勞工特休有疑慮

Next month the new labor law comes into effect. However, there are many aspects to it which still lack clarity. For example, after working for six months, workers are entitled to three days' annual leave. However, under the previous system, some workers unable to take leave were not paid for their unused leave. Now they have to be paid for untaken leave, but this is not made clear. Also, due to the calculation for overtime pay on the flexible rest day, workers could work longer for less pay. Legislators threatened to launch a temporary proposal for the Ministry of Labor to clarify the amendments. Yesterday afternoon, the Ministry of Labor announced an about-face in policy with a new trial formula. Next month the new labor law comes into effect. After six months' work, staff will be entitled to three days holiday, but it is unclear in the legislation if they are entitled to pay if they cannot take the leave. Under the old system, they would have lost the leave and would not get any pay for it either. ==HSIEH CHIEN-CHIEN Sect. Head, MOL Gender Equality and Discrimination == At the end of the year, if staff have not taken their time off and don't have time to take it, under the old system, the employer did not have to pay them. So, under the new system, the employer should really give them pay for those three days. The employer should give pay for leave which has not been taken, but this has not been made clear in the legislation. Also, the calculation for overtime pay for flexible rest days has been questioned by legislators as being unclear. The MOL version was: overtime pay for under 4 hours on the flexible rest day, is calculated according to a four hour period, based on the hours and the basic monthly wage. However, overtime from the 9th to 12th hours is calculated at 12 hours but without being based on the number of hours worked so far. So on a NT$36,000 a month wage with standard hours, the hourly rate would be NT$150 an hour; so overtime from 1 to 8 hours should be an average of NT$388 per hour. However, those 8 hours would then be added into the basic rate when working over 12 hours, making the overtime rate only NT$342 an hour. This means that staff working longer hours would get less pay. Labor analyst pointed out that this was unreasonable. ==CHIU CHUN-YAN Law Prof. Chinese Culture University== The law is designed to stop the employer making staff work on flexible rest days. But, from the employer's point of view, instead of 8 or 9 hours, they may as well work 12, as this will lessen their pay. Legislators think that basic pay should be given differently for work over 8 hours and threatened to launch another proposal so that the Ministry of Labor would clarify the anomalies. The Ministry of Labor then made a sharp policy turn in the afternoon and said that on flexible rest days, from the 9th hour of overtime, employers must give regular overtime pay based on the standard monthly wage hours. TRANSLATED BY：CLARE LEAR 勞基法一例一休新制，下個月就要實施，卻出現不少疑慮，包括，到職半年就有三天特休假，不過，因為新舊制的銜接，可能有些勞工，到請休期限，可能特休會休不完，另外，在休息日加班費的部份，還可能出現，加班越久，加班費領越少的問題，有立委就揚言，發起臨時提案，要勞動部重新解釋，下午勞動部也重新宣佈試算公式，政策急轉彎。 一例一休明年元旦上路，造福工作滿半年的勞工，馬上能有3天特休假，只是，卡在新舊制的銜接，如果勞工是今年1月2號到職，到下個月新制一上路後的1月2號，就到了3天年假的請休期限，勞工的特休就想休，也休不完。 ==勞動部勞動條件及就業平等司長 謝倩蒨== 勞工朋友如果因為年度終結 他特休沒有休完的日數 雇主是要按日數來發給工資的 所以勞工朋友沒有休完的這三天 雇主就要發工資三天 休不完的特休，老闆必須換發薪資，不過，另外還有關休息日的加班費計算，也被立委挑出毛病，因為勞動部對規定的解釋，休息日加班未滿4小時，加班費都要以4小時計算，不過，加班到第9至12小時，以12小時算，但不加本薪，這樣如果以月薪3萬6千元，時薪150元來算，加班1到8小時，加班費的平均時薪是388元，要是加班12小時，因為沒有加本薪，因此時薪換算下來，卻只有342元，反而加班越久，領越少，勞動學者也認為，很不合理。 ==文化大學法律系教授 邱駿彥== （法令)是要用多的加班費 來抑制雇主不要濫用休息日 那結果你現在變成是說 做的越久 給的薪水越少 那當然雇主可能說 做到八小時 或第九小時 他會覺得 乾脆我讓你做到十二小時 這樣子他可以用後面那四個小時 比較少的加班費 去稀釋掉到他整體的負擔 有立委認為，上班超過8小時，本薪就該另給，就揚言，發起臨時提案，要勞動部重新解釋，勞動部下午則政策急轉彎，表示休息日，加班第九小時起，僱主必須比照平常日加班，除了給勞工加班費，也必須加發本薪。