Reform Taiwan’s Labor Laws to Better Prevent Forced Labor

Reform Taiwan’s Labor Laws to Better Prevent Forced Labor

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Reform Taiwan’s Labor Laws to Better Prevent Forced Labor

The challenge of countering exploitative labor is not only one of effective inspection, investigation, and prosecution. It is also one of terminology and definition—a matter of properly understanding the differences between terms that are related, so that we can ground our discussions in accuracy and better identify gaps that hinder more effective enforcement of legal protections. These considerations bear direct relevance to ongoing developments in Taiwan: for, although the international treaties on forced labor (強迫勞動) under the purview of the International Labour Organization (ILO) were codified far away from Taiwan, the island is neither immune nor siloed from these extreme cases of human exploitation. 

The Issue of Forced Labor 

In February 2023, some 20 bodies were found dead in the waters off the western coast of Taiwan. They were initially thought to be victims of human trafficking, possibly kept in a situation of forced labor by their unscrupulous employers. Investigators later found that the deceased had likely fallen victim to migrant smuggling while searching for employment in Taiwan. 

Reporting on this tragedy speaks to the challenge of terminology and definitions in the effort to eliminate extreme labor exploitation in Taiwan. Terms such as “human trafficking,” “migrant smuggling,” and “forced labor” can often appear together, and nearly interchangeably. (This is especially the case in the early stages of an investigation when facts are still being gathered.) Investigators need to ascertain if there was an intended purpose of exploitation—such as forced labor—that would make the circumstances meet the threshold of human trafficking, as opposed to cases that involve only the smuggling of migrants across a state border. 

In regards to Taiwan and human trafficking, the US State Department’s annual Trafficking in Persons report, which includes a ranking of states and territories on a tiered system based on their anti-trafficking efforts, often inspires lively debates between government and civil society groups. The report—and the discussions that accompany it—have been successful in pushing the term renkou fanyun (人口販運) (“human trafficking” or “trafficking in persons”) into the local lexicon.

However, a broad understanding of human trafficking is removed from the everyday reality of employment in Taiwan. The focus is often placed on the label of trafficking, and less on the details of terminology and definitions that come under the scope of trafficking. It is therefore crucial to look at the definition of “forced labor” as a key purpose of exploitation under the human trafficking framework, while also examining any gaps that may exist within international standards in developing labor protections in Taiwan. 

It is in this context that Taiwan must absolutely embark on what I—alongside domestic legal scholars and labor advocates—have consistently raised in dialogues with Taiwan’s government and civil society groups: Revise the Labor Standards Act (勞動基準法) to bring it into full alignment with the international definition of forced labor. 

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Image: Protestors for the rights of migrant fisherman in Taiwan’s fishing industry stand outside the site of a government forum on human trafficking issues (September 2020). (Image source: Global Labor Justice – International Labor Rights Forum)

The Labor Standards Act’s Gaping Hole

Provisions barring forced labor in Taiwan’s domestic legal system are most readily seen in the Labor Standards Act, the centerpiece of Taiwan’s labor protection regime. Article 5 of the Act states clearly that “[n]o employer shall, by force, coercion, detention, or other illegal means, compel a worker to perform work” (雇主不得以強暴、脅迫、拘禁或其他非法之方法,強制勞工從事勞動).Employers who violate Article 5 can be sentenced under Article 75 to imprisonment for a term not exceeding five years, detained, and/or fined a sum of no less than NTD $750,000 (USD $24,000).

Notably, Article 5 focuses exclusively on employer actions (force, coercion, detention, or other illegal actions). It does not include a provision requiring the free and informed consent of the worker. By not including the worker’s voluntary engagement in labor, the Act’s language does not fully mirror the ILO’s definition of forced labor: “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”

In this context, the element of non-voluntary performance of labor connects to the fundamental aspect of human agency: that of free and informed consent to undertake the work in question, and the freedom of job mobility. It goes beyond extreme physical abuses, such as abduction and use of physical constraints against the worker. This is a gaping hole in the most fundamental piece of legislation in Taiwan intended to address labor protections for workers. 

The Labor Standards Act is insufficient in addressing involuntary work, which tends to be more obscured and insidious, and frequently escapes attention. This does not mean that there is no provision in Taiwan’s domestic law to address work that is done without consent.

Language addressing coerced work is included in Article 296 of the Criminal Code of the Republic of China (中華民國刑法) under the chapter on offenses against personal freedoms. This section criminalizes the enslavement of another person or placing them “in a position as not free as a slave.” Relevant language can also be found in the detailed provision in Taiwan’s Human Trafficking Prevention Act (人口販運防制法), where it criminalizes the use of less overt means such as “hypnosis, fraud, purposeful concealment of important information, illegal debt bondage, withholding important documents, making use of the victim’s inability, ignorance or helplessness, or by other means against his/her will,” for the purpose of exploiting the person for labor or organ trafficking. 

Yet, Taiwan’s current body of labor law requires a more clear and forceful repudiation of the totality of forced labor—of work that is not free. 

Risks of Non-Alignment with International Definition

Inconsistencies in domestic law related to forced labor are not a problem unique to Taiwan. The United States, for instance, does not specifically reference involuntariness as a factor in the definition for the federal crime of forced labor, per 18 US Code 1589. However, the element of involuntariness is present in other relevant legislation. This is most readily seen in the US Customs and Border Protection’s (CBP) reliance on a definition of forced labor nearly identical to the international definition: specifically, it uses Section 307 of the US Tariff Act (19 US Code 1307), which bars the entry of goods made with forced labor into the United States.

Nevertheless, it is extremely important that Taiwan’s government recognizes that its domestic definition of forced labor must be consistent with the internationally accepted definition of the same. Lower standards in Taiwan’s labor law provide a false haven for businesses that believe compliance with Taiwan’s domestic law will be enough to safeguard against risks of forced labor. This is far from reality. 

During the course of preparing a guidebook on understanding the ILO’s 11 forced labor indicators in the context of Taiwan’s small and medium enterprises, my research team and I found several publicly reported cases in which local standards were incompatible with international standards. The most notable is in migrant workers’ payment of recruitment fees and related costs, in the form of the legally permitted monthly services fees to labour brokers in Taiwan. This practice does not align with ILO’s General Principles and Operational Guidelines for Fair Recruitment and Definition of Recruitment Fees and Related Costs. 

Because the Labor Standards Act is the keystone legislation addressing basic labor protections in Taiwan, employers looking for compliance on forced labor may be satisfied by only looking for overt acts of a menace of penalty, instead of conducting a deeper probe to identify whether there is free and informed consent in the employment relationship. [1]

Examples of involuntariness can be as varied as: workers doing a job that is different from the one promised; abusive requirements for overtime or on‐call work that have not been agreed upon; hazardous work to which the worker has not consented; work with very low or no wages; living in degrading living conditions imposed by the employer, recruiter, or other third‐party; work for employers other than those agreed upon; work for longer periods than agreed upon; or work with no or limited job mobility. 

Harmonizing Article 5 of Taiwan’s Labor Standards Act with the international definition of forced labor would go a long way towards promoting a more accurate understanding of work that is not voluntarily offered.

Opportunities Presented by “Made in Taiwan” 

Beyond leaving workers vulnerable to forced labor, the gaps in Taiwan’s Labor Standards Act also put employers’ business interests at risk. Goods that are believed to have involved forced labor are subject to a “Withhold Release Order” (WRO) and are detained at all US ports. Certain Taiwanese-harvested fish have already been barred from entering the US market under suspicion of having used forced labor. 

Inability to export to the United States undeniably is a costly penalty for businesses. But the WROs are also a business opportunity for Taiwan to be different. If Taiwan is able to reform its legal framework for combating forced labor, it could help to distinguish Taiwanese products from those emanating from China and many other countries with active WROs— which cannot get past US ports due to their connection to forced labor. Amending the law in Taiwan then would be more than an academic and legislative exercise: it would be one that contributes to Taiwan’s economic competitiveness in an age of growing emphasis on social returns that can benefit the environment, community, and people. 

The legal system in Taiwan is strong, transparent, and predictable. Taiwan has the rule of law that is fundamental to the functioning of democratic institutions. This makes the need for reform all the more imperative. Taiwan must recognize that the Labor Standards Act is missing clear, decisive language on the misery of involuntary labor—which, with the element of threats and penalties, makes up the totality of forced labor as is understood internationally.

The main point: While Taiwan has a strong and durable legal system, it lacks effective language addressing the totality of forced labor. In order to ensure the island’s place as an international leader in the rule of law and human rights, Taiwan must add such language to its keystone Labor Standards Act, with the goal of bringing it into alignment with international labor standards.

Author’s Note: This essay for the Global Taiwan Brief follows from a longer research essay written for the University of Washington-University of Nottingham Taiwan Studies Programme Joint Conference, 15-16 June 2023. The author thanks the Global Taiwan Institute for a grant that supported the research conducted for this essay, and Nicholas Haggerty and the editorial team at GTI for review and comments.

[1] Per the ILO, menace of penalty refers to a wide range of penalties used to compel someone to work. The threat of penalty can be arrest or jail or in the suppression of workers’ rights or privileges, such as the withholding of wages. Threats and intimidations may be realized in different forms, including the use of violence, threat against the security of the person, or threat of denunciation of irregular workers to immigration authorities.