Mon, Nov 28, 2005 page8

• Letters: The qualified can work

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  The qualified can work

  With regards to the letter on foreign spouses working (Letter, Nov. 25, page 8), the writer has accidentally left out the part where any foreigner can work in Taiwan, even a spouse, if they are qualified for the job.

  For example, if you have studied for four years in university to be a teacher and are thus qualified to be a teacher then you may go and teach in a kindergarten. If you are Joe Bloggs off the street and you have married a Taiwanese person but are not a qualified teacher, then you cannot teach in a kindergarten. This would also apply to being an engineer, cook or taxi driver. As long as you have the qualifications needed for the work you are applying for, then as a spouse you are legally able to do that job.

  My only concern is that in the past I was refused when applying for an English teaching certificate allowing employment in government schools within a certain county. Maybe as foreign spouses we should be allowed to sit these exams that would enable us to teach in elementary, junior and senior high schools.

  A. Arnold
  

  Tainan

  The letter on foreign spouses working contains an accurate description of the confusion surrounding the ability of foreign spouses to legally obtain work. However, it is mistaken in describing the exemptions for foreign spouses given in the Employment Services Act (就業服務法).

  Though the act is readily available in both Chinese and English on the Internet, few government officials or foreign spouses have read it in any detail.

  The 2003 revision of the act can be found in English by going to (http://law.moj.gov.tw/Eng/) and entering "Employment Services Act" in the search box on the left. The same site also has the official Chinese version. Articles 42 through 62 govern the employment of foreign workers (in addition to some articles in the Penal Provisions section).

  Foreign spouses are only explicitly exempted from the requirements for obtaining a work permit. The relevant section of Article 48 reads: "However, such a requirement of Employment Permit is exempted where ... the Foreign Worker in question has been married to a Republic of China national with a registered permanent residence in the territory of the Republic of China and has been permitted to stay therein."

  The act does not in any way exempt foreign spouses from any other restrictions related to foreign workers, only the requirement to obtain a work permit. Articles 49 through 51 exempt certain types of foreign workers from various restrictions in the act, but they do not exempt foreign spouses.

  Unfortunately, many government officials and foreign spouses mistakenly believe that these exemptions exist in the act, which causes a great deal of confusion and differing interpretations, depending on who one asks.

  A careful reading of the law finds that employers must hire a Taiwanese in preference to a foreign spouse (Articles 42 and 47), foreign spouses are restricted to certain types of jobs (Article 46), and an employer may even be required to pay funeral expenses for a foreign spouse (Article 61). None of these restrictions is exempted for foreign spouses.

  In addition, many government agencies have regulations and interpretations governing foreign workers without making any distinction for foreign spouses.

  In addition to restricting the types of work a foreigner may engage in, Article 46 also gives government agencies the right to set working qualifications for foreign workers.

  This gives rise to the situation where a foreign worker does not need a work permit, but approval may still be required from a government agency that the foreign worker meets certain requirements.

  Perhaps what creates the most problems for employers is that they are also not exempted from penalties for violating the act when hiring a foreign spouse. This causes them to be very reluctant to hire a foreign spouse if there is any doubt that doing so would contravene any requirement in the act that might lead to an expensive fine.

  While it may have been the intent of the 2003 revisions to give foreign spouses unrestricted working rights, and while some government agencies have interpreted it this way, the actual wording of the act falls well short of this.

  If the intent was to give foreign spouses these working rights, then foreign spouses should have been listed as an exempt category in Article 51, or have otherwise been explicitly exempted.

  This lack of an explicit exemption for foreign spouses to the various restrictions on foreign workers is the source of much of the confusion on the part of employers and government agencies.

  The result is that foreign spouses often have trouble obtaining work because employers don't want to deal with the headache of getting different answers on how to legally hire foreign spouses.

  James Lick
  

  Taipei
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