Can caretakers ask their current boss to apply for direct employment?
If foreign workers don’t want to pay a lot of agency fees, can they ask their current boss to apply for direct employment?
Published: 2018-10-24 ‧ Last updated: 2022-11-18
Case
Indonesian caregiver A has been taking care of his grandfather in Taipei for about three years. Over the past three years, she has paid service fees to the agency every month. The first year was 1,800 yuan per month, the second year was 1,700 yuan per month, and the third year was 1,500 yuan per month. Over the past three years, she had to pay a total of 1,800 yuan. 60,000 yuan, equivalent to more than three months' salary, was used to pay for agency service fees. A doesn’t want to pay the agency fee anymore. Can he ask his current boss to help him apply for direct employment?
1. Is it necessary to go through an agency to hire foreign workers?
Employers hire blue-collar foreigners in accordance with Article 46, Paragraph 1, Items 8 to 10 of the Employment Service Act [1], and they hire fishermen, domestic helpers or caregivers, manufacturing workers, or caregivers in nursing homes, etc. According to the same provision, the Ministry of Labor has established work qualifications and review standards[2], and requires both parties to enter into a written labor contract.
In other words, the government only limits hiring projects and examines hiring qualifications. It does not mandate that both parties must go through an agency to handle the hiring process. Employers can also directly hire foreign workers themselves. However, because the current procedures related to hiring foreigners are cumbersome, most employers appoint agency companies[3] to handle the procedures and provide translation services (Figure 1).
2. Do foreign workers have to pay agency service fees every month?
To answer this question, the foreign worker must look at the contract between him/her and the agency. Article 3 of the model contract [4] drawn up by the Ministry of Labor is available for reference. The Ministry of Labor also sets a cap on service fees, which is 1,800 yuan per month in the first year, 1,700 yuan per month in the second year, and 1,500 yuan per month in the third year [5]. In other words, if A does not want to pay a high agency fee, he can negotiate with the agency company for a lower monthly service fee.
It is worth noting that the Ministry of Labor explained in a letter that "an agency can only charge fees if it provides services"[6]. If a foreign worker believes that the agency company has not provided any services in that month[7], he can refuse to pay the service fee for that month. Some agency companies will require employers to withhold service fees from foreign workers’ wages. However, employers must directly pay foreign workers’ full wages every month and are not allowed to withhold, pay or save on their behalf without consent [8]. Therefore, the monthly service fee between the agency and the foreign worker should be paid by the foreign worker to the agency company. It is also illegal for the employer to deduct the agency service fee from the salary of the foreign worker without authorization.
3. How to apply for direct employment? What should I pay attention to?
Direct hiring means that foreign workers are no longer hired through agencies. In the case of good labor-management relations, it is not difficult to self-employ directly as long as you master the three principles of "legal employment", "legal residence" and "regular physical examination".
The Ministry of Labor issues employment licenses to employers and foreigners for a period of three years[9]. If they want to renew the contract after the three-year period, the employer and the foreigner can continue to appoint an agency, or go through the renewal process on their own. If A and the employer decide not to re-employ through an intermediary, they can provide counseling and document collection and transfer services through the "Direct Employment Joint Service Center" (referred to as the "Direct Employment Center") under the Workforce Development Agency of the Ministry of Labor.
If A reaches an agreement with the employer for direct employment, according to regulations, an application for renewal must be submitted between 2 and 4 months before the expiration [10], and thereafter, the employer must reapply for an employment permit every three years. After obtaining the renewal permit, A must also pay attention to the validity period of the passport and residence permit, and contact the relevant units within the deadline to apply for the extension of the validity period. In addition, employees must also comply with the regulations of the Bureau of Disease Control and Prevention of the Ministry of Health and Welfare and go to a designated hospital for a physical examination for statutory infectious diseases within 30 days before and after the 6th, 18th, and 30th month from the date of employment[11] .
外籍勞工不想要付很多仲介費，可以請現在的老闆申請直聘嗎？
刊登：2018-10-24 ‧ 最後更新：2022-11-18
案例
印尼籍看護工A在台北照顧爺爺即將屆滿3年。這3年來，每個月她都要付服務費給仲介公司，第1年每個月1,800元，第2年每個月1,700元，第3年每個月1,500元，3年下來共要支付6萬元，相當於3個月以上的薪水都拿來付仲介服務費了。A不想再付仲介費，可以要求現在的老闆幫忙申請直聘嗎？
一、聘僱外籍勞工是否一定必須經過仲介？
雇主聘僱藍領外國人是依據就業服務法第46條第1項第8至10款[1]，聘僱漁工、家庭幫傭或看護、製造業工人或養護機構看護工等。依據同條規定，勞動部訂有工作資格及審查標準[2]，並規定勞雇雙方須訂立書面勞動契約。
換言之，政府僅限制聘僱項目、並審查聘僱資格，沒有強制規定勞雇雙方必定經過仲介公司辦理聘僱程序，雇主也可以自己直接聘雇外籍勞工。惟因目前聘僱外國人相關程序繁瑣，所以雇主大多委任仲介公司[3]代辦流程及提供翻譯服務（圖1）。
二、外籍勞工是否每個月必須支付仲介服務費？
要回答這個問題，外籍勞工必須看他／她與仲介的契約如何約定，勞動部所擬的契約範本[4]第3條，可供參考。而勞動部也對服務費設有上限，即是第一年每個月1,800元，第二年每個月1,700元，第三年每個月1,500元[5]。換言之，如果A若不想付很高的仲介費，也可以與仲介公司議定較低金額為每月服務費。
值得注意的是，勞動部函釋「仲介有服務才能收費」[6]，如果外籍勞工認為仲介公司當月並沒有提供任何服務[7]，可以拒繳當月服務費。部分仲介公司會要求雇主自外籍勞工薪資中代扣服務費，然而雇主每月必須直接給付外籍勞工全額薪資，不得未經同意即代扣、代繳或代為儲蓄[8]。因此，每月仲介與外籍勞工之間的服務費，應由外籍勞工自行繳納給仲介公司，如雇主擅自從外籍勞工的薪水中扣除仲介服務費，也是違法的。
三、如何辦理直接聘僱？有哪些需要注意事項？
直接聘僱，即是不再透過仲介聘僱外籍勞工。在勞資關係良好的情況下，只要掌握「合法聘僱」、「合法居留」和「定期體檢」三大原則，自辦直聘並不困難。
勞動部發給雇主與外國人聘僱許可每次為3年[9]，3年期滿若想要續約，雇主與外國人可以繼續委任仲介公司，或自行辦理續聘程序。若A與雇主決定不再透過仲介辦理續聘，就可以透過勞動部勞動力發展署轄下之「直接聘僱聯合服務中心」（簡稱「直聘中心」）提供輔導以及收轉文件的服務。
A若與雇主達成合意辦理直接聘僱，依據規定必須在期滿前2至4個月之間提出續聘申請[10]，其後每3年亦必須重新申請一次聘僱許可。取得續聘許可後，A亦須留意護照效期、居留證效期，在期限內洽有關單位辦理效期之延長。另外，亦須遵守衛生福利部疾病管制局之規定，於聘僱日起算之第6個月、第18個月、第30個月之前後30內，到指定醫院辦理法定傳染病體檢[11]。
Thank you for this information 🙏 sir
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