Let Involuntariness Ring in Taiwan’s Labour Law

This essay is based on an earlier publication in the Global Taiwan Brief, published on June 14, 2023 by the Global Taiwan Institute. The author thanks the Global Taiwan Institute for a grant that supported the research conducted for this essay and Nicholas Haggerty for review and comments.

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While the international treaties on “forced labour 強迫勞動” were codified far away from Taiwan, the island is not siloed from these extreme cases of human exploitation. 

Yet, the challenge of countering exploitative labour 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 a more effective enforcement of legal protections.  

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 labour by their dubious employers. Investigators later found the deceased likely to have fallen victim to migrant smuggling in their search for employment in Taiwan. 

Reporting on this tragedy also speaks to the challenge of terminology and definition in efforts to eliminate extreme labour exploitation in Taiwan. Terms such as ‘human trafficking,’ ‘migrant smuggling’ and ‘forced labour’ can often appear together. This is especially the case in the early stages of an investigation, where facts are still being gathered. 

Investigators need to ascertain if there was an intended purpose of exploitation, such as forced labour, that would make the circumstances meet the threshold of human trafficking as opposed to only involving the smuggling of migrants across a state border. 

On Taiwan and human trafficking, the annual U.S. Trafficking in Persons report and its ranking of where states and territories sit on a tiered system based on their anti-trafficking efforts inspires a lively debate among government and civil society. The report and the discussions that accompany it have been successful in pushing the term “人口販運” for “human trafficking” and “trafficking in persons” into the local lexicon.

Yet a broad understanding of human trafficking is removed from the everyday reality of employment in Taiwan. The focus is 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 labour,’ as a key purpose of exploitation under the human trafficking framework, and examine any gaps that may exist with international standards when we look at labour protections in Taiwan. 

It is in this context that Taiwan must absolutely embark on what I, alongside domestic legal scholars and labour advocates, have consistently raised in dialogues with the government and civil society: Revise the Labor Standards Act to let the harms of involuntariness of work ring fully and undeniably in Taiwan’s domestic framework of labour protections. 

Labor Standards Act’s Gaping Hole

Provisions barring forced labour in Taiwan domestic law are most readily seen in the Labor Standards Act, the centrepiece of Taiwan’s labour protection regime. Article 5 of the Act 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 to imprisonment for a term not exceeding five years, detained and/or fined a sum less than NT$750,000 (US$24,000) under Article 75 of the Labor Standards Act.

Article 5 focuses exclusively on employer actions (force, coercion, detention or other illegal means). It does not include a provision on the free and informed consent of the worker. 

By not including the worker’s voluntary engagement in labour, the Act’s language does not fully mirror the International Labour Organization’s (ILO) definition of forced labour: “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” (ILO Forced Labour Convention of 1930 (C029), article 2(1)).

Involuntariness refers to the most fundamental aspect of human agency, that of a free and informed consent to undertake the work and the freedom of job mobility. It goes beyond the abduction and use of physical constraints against the worker. This is a gaping hole in the most fundamental piece of legislation in Taiwan that addresses labour protection for workers. 

While this does not mean that there is no provision in Taiwan’s domestic law to address work that is done without consent, involuntariness in labour is quiet. It does not command attention. 

One must look for it in Article 296 of the Criminal Code under the chapter on offenses against personal freedoms that criminalises the enslavement of another person or placing him or her “in a position as not free as a slave.” 

One looks for it in the detailed provision in Taiwan’s Human Trafficking Prevention Act, where it criminalises 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 labour or organ trafficking. 

But I do not find what I seek in Taiwan’s labour law: a clear repudiation of the totality of forced labour, of work that is not free.

Risks of Non-Alignment with International Definition

Incongruence in domestic law on forced labour is not a problem unique to Taiwan. The U.S., for instance, does not specifically reference involuntariness in the definition for the federal crime of forced labour, under 18 U.S. Code 1589, but the element of involuntariness is present in other relevant legislations. This is most readily seen in how the U.S. Customs and Border Protection relies on a definition of forced labour nearly identical to the international definition, under Section 307 of the U.S. Tariff Act (19 U.S. Code 1307), which bars the entry of goods made with forced labour into the U.S.

Nevertheless, it is extremely important that Taiwan’s government recognises that its domestic definition of forced labour must be consistent with what is understood to be forced labour internationally. Lower standards in Taiwan’s labour law provide a false haven for businesses that believe compliance with domestic law would be enough to safeguard against risks of forced labour. This is far from reality. 

During the course of preparing a guidebook on understanding ILO’s 11 forced labour indicators for Taiwan’s small and medium enterprises, my research team and I found several publicly reported cases, where local standards were incompatible with international standards. The most notable is in migrant workers’ payment of recruitment fees, 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 to address basic labour protections in Taiwan, employers looking for compliance on forced labour 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. 

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 had not been agreed; 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 other employers than agreed; work for longer periods than agreed; work with no or limited job mobility. 

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

Opportunity of “Made in Taiwan” 

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

Inability to export to the U.S. undeniably is a costly penalty for businesses. But the WROs are also a business opportunity for Taiwan to be different – for Taiwanese products to be distinguished from those emanating from China and many other countries with active WROs that cannot get past U.S. ports, owing to their connection to forced labour.

Amending the law in Taiwan then is not only an academic and legislative exercise. More than the quarterly return, it is 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 framework in Taiwan is strong, transparent and predictable. We have the rule of law that is fundamental to the system of democratic institutions, and this now belies the urgency of reform on which we must embark.

Recognise that the Labor Standards Act is missing a clear audible ring on the misery of labour that is not offered voluntarily but without a menace of penalty. Let free and informed work resonate in this bedrock legislation. 

Let it ring loudly and without any ambiguity. We know who we are, and we know what “Made in Taiwan” one day could mean. 

(Feature photo by Josh Olalde on Unsplash)