萬國法律事務所

Two female workers at a well-known domestic garment factory voluntarily requested to return to work after taking 40 days of the statutory 8-week maternity leave. The factory management accepted their requests and paid salary in lieu of leave for the remaining untaken maternity leave per the workers’ election. The factory manager was prosecuted and, in a summary judgment, the Pingtung District Court fined the factory manager NT$ 45,000. Failure to pay the fine will result in this sentence being commuted to 45 days of labor.

The Labor Affairs Department of the Pingtung County Government discovered the above situation in July 2009 during a routine inspection of employment discrimination and gender equality. The two female workers expressed to the Labor Affairs Department that they voluntarily, without being compelled by the employer, returned to work after having taken 40 days of maternity leave. The County Government initially only put the company on a counseling list on the grounds that the factory did not compel the female workers to return to work and did not refuse to grant maternity leave, and reported the matter to the Council of Labor Affairs (CLA).

However, the CLA returned the report and indicated that Article 50 of the Labor Standards Act requires employers to grant an 8-week maternity leave and explained that this provision cannot be waived. Even in the case where the factory paid salary in lieu of leave and the workers voluntarily returned to work, the factory is not permitted to allow the female workers to return to work and was required to force the female workers to take the full 8-week maternity leave. The CLA thus requested the County Government to prosecute. Following several failed reconciliations, the case was prosecuted by the Pingtung District Prosecutors Office and the above sentence was imposed in a summary judgment of the Pingtung District Court.

The Labor Standards Act contains the most basic protections for employees. The mandatory provisions therein include not only maternity leave but also the rules regarding minimum wage and overtime, and none of these provisions can be waived by agreement between employers and employees and the employers cannot violate the relevant protective measures even where employees agree to do so.