The foreign worker's job is to take care of his grandpa, but she often has to cook for the whole family or help with housework.
The foreign worker's job is to take care of his grandpa, but she often has to cook for the whole family or help with housework. Can the foreign worker appeal? How should the scope of work of a home care worker be defined?
2022-11-18
Case
Indonesian family caregiver A is taking care of my grandfather who has mobility issues in Taiwan. Grandpa, grandma, son, daughter-in-law, and grandson live in a three-generation family. There are 4 adults, 2 children, and 1 dog. The employer requires A to help with cooking, cleaning, laundry, walking the dog, and bathing the dog while taking care of his grandpa. The household chores for a family of six are heavy. A couldn't bear it after working for several months. He hesitated to file a 1955 appeal, but the agent advised him to be patient. A also heard that if he appealed, he would be deported by the government...
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1. Are home care workers and domestic helpers different? What is the scope of work defined? What are the common forms of non-licensed work?
The law stipulates that the legal job content of foreign home care workers is to engage in daily care-related work for people with disabilities or illnesses at home [1]. Because the people being cared for cannot take care of themselves, they usually cook and do laundry for the people being cared for. , cleaning the environment, etc. are all within the legal scope of work of home caretakers.
The work content of foreign domestic helpers is to engage in house cleaning, food cooking, daily care of family members or other household service-related work in private households [2]. Home care workers and domestic helpers are two different types of work.
In the case, A is a home care worker who is assigned by her employer to cook for the whole family, wash the family’s clothes, and help take care of the pets. This is beyond the scope of the legal work and is called “unauthorized work” [3]. Some employers will require the foreign caregivers they hire to help in their own snack bar, or bring them to the company to clean the office, or clean other residences, etc. These are all non-permitted jobs.
Even for domestic helpers, since the qualifications for employment are based on taking care of the elderly and young children, their work is limited to related domestic services, and employers cannot require helpers to take care of pets.
In addition, A is employed to take care of his grandpa, but if his grandma who lives with him suffers an accidental fracture and needs to be hospitalized for two weeks, can he ask A to go to the hospital to take care of his grandma? The answer is no. The Ministry of Labor examines the employer's application for foreign care qualification based on the caregiver's Pap diagnosis certificate or disability manual. Therefore, according to law, it can only provide home care services for this specific care recipient. Therefore, since A is taking care of his grandpa, When employed, if the employer requires A to take care of his grandma at the same time, or to take care of his grandma exclusively, it is considered to be working outside of permission.
2. If an employer assigns a migrant worker to work outside of the permit, can the migrant worker appeal?
If an employer assigns foreign workers to perform work outside the approved work, if it is caught, it may be fined not less than NT$30,000 but not more than NT$150,000 according to law[4]; if it is caught for the second time, the Ministry of Labor will revoke the employer’s recruitment and employment permit, The employer will lose its employment qualification and will not be able to apply to hire foreign caregivers as an employer for two years[5]. In addition, because the reason for the termination of employment cannot be attributed to the employer, caregivers can change employers according to law [6].
Therefore, if A appeals to the Ministry of Labor, the employer will be fined and asked to stop asking A to do work that has nothing to do with taking care of his grandpa; if the employer improves but then returns to its old ways after a while, A can appeal again, and the Ministry of Labor will cancel the employer employment permission and gives A the right to change employers within a certain period of time. The Ministry of Labor has very strict regulations on unlicensed work. If the employer claims that A has consented or actively helped, it is still illegal[7].
外籍勞工的工作是負責照顧阿公，但常常要煮全家人的飯或是幫忙做家事，這樣外籍勞工可以申訴嗎？家庭看護工的工作範圍應該如何界定？
2022-11-18
案例
印尼籍家庭看護A在臺灣照顧行動不便阿公。阿公和阿嬤以及兒子媳婦與孫子一家三代同堂，共有4個大人2個小孩，還有1隻狗。雇主要求A在照顧阿公之餘，順便幫忙煮飯、打掃、洗衣服、遛狗、幫狗洗澡。一家6口的家事份量繁重，A工作了幾個月以後受不了，很猶豫要不要打1955申訴，但是仲介勸A忍耐，A還聽說如果申訴會被政府遣返……
本文
一、家庭看護工和幫傭不一樣嗎？工作範圍界定為何？常見的許可外工作有哪些樣態？
法律規定，外籍家庭看護工的法定工作內容是，在家庭從事身心障礙者或病患的日常生活照顧相關事務工作[1]，因為被照顧人生活無法自理，舉凡為被照顧人煮飯、洗衣、清潔環境等，皆為家庭看護的合法工作範圍。
而外籍家庭幫傭的工作內容則是，在私人家庭從事房舍清理、食物烹調、家庭成員起居照料或其他與家事服務有關工作[2]。家庭看護工與家庭幫傭兩者，屬於不同的工作類型。
案例中，A屬於家庭看護工，被雇主指派煮飯給全家人吃、洗全家人的衣物，還要幫忙照顧寵物，已經超出合法工作範圍，稱之為「許可外工作」[3]。有些雇主會要求所聘僱的外籍看護到自己開設的小吃店幫忙，或是帶到公司打掃辦公室，或是清潔其他住宅等，都屬於許可外工作。
而即便是家庭幫傭，由於申請聘僱資格亦是以照顧老人與幼兒為審核基準，工作亦限於相關家事服務，雇主也不可以要求幫傭順便照顧寵物。
此外，A受聘照顧阿公，但同住的阿嬤若意外骨折需要住院兩星期，是否可以請A到醫院照顧阿嬤呢？答案是不行。勞動部審查雇主申請外籍看護資格，乃是依據被看護人的巴氏量表診斷書或身心障礙手冊，因此依法僅能針對該名特定被看護人提供居家照顧服務，因此A既然以照顧阿公名義受聘，雇主若要求A同時照顧阿嬤，或是專門照顧阿嬤，也算是許可外工作。
二、雇主指派移工從事許可外工作，移工可以申訴嗎？
雇主指派外籍勞工從事許可外工作，若經查獲，依法可處新台幣3萬元以上15萬元以下罰鍰[4]；若是第二次被查獲，勞動部將廢止雇主招募及聘僱許可，雇主將喪失聘僱資格，且兩年內不得再以雇主身分提出申請聘僱外籍看護[5]。另外，因為廢止聘僱原因不可歸責於勞方，所以看護依法可以轉換雇主[6]。
因此，若A向勞動部申訴，雇主會被罰款並被要求停止叫A從事與照顧阿公無關的工作；若雇主有所改善，但再過一陣卻故態復萌，A可以再次申訴，勞動部將廢止雇主的聘僱許可，並給予A在一定時間內轉換雇主的權利。勞動部對於許可外工作的規範相當嚴格，若是雇主主張A本人有同意或主動幫忙，仍然不合法[7]。
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