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Finn76
Joined: 07 Sep 2005
Posts: 29
Location: Mingxiong Chiayi
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 Posted: Wed Mar 01, 2006 2:12 am Post subject: Legal questions re ARC and contract breakage |
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Hi people. I am in need of some legal advice, and the free legal guy at TeaLit must be over-worked, so I was wondering if anyone of you out there could help me.
I handed in my notice at a private Senior High School last week (NOT a buxiban). The contract is for a year, and I am breaking it roughly half way through for various reasons. I have given them 3 weeks notice so they have plently of time to find a teacher, even though legally I am only required to give a week.
It is stated in my contract that they will with-hold 20,000NT from my last month's pay if I break the contract. I know this is illegal, but exactly which Article says they can not take money out form the LAST month's pay? It is NOT an advance deduction as stated below in Article 26.
Article 26 of the Labor Standards Act states that:
An employer shall not make any advance deduction of wages as punitive damages or indemnity.
Also, how long after I leave the job will my ARC expire? Is it immediately? In other words, if I don't find a job in time to take over my ARC, do I have to leave the country the next day on a visa run?
I have heard this is becoming painful, with some people waiting 2 days to sort out a visa. Seriously?
Any advice would be very much appreciated! |
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clark.w.griswald
Joined: 06 Dec 2004
Posts: 2056
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| Posted: Wed Mar 01, 2006 3:47 am Post subject: Re: Legal questions re ARC and contract breakage |
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I can�t give you legal opinion but I can certainly give you my take on the situation.
| Finn76 wrote: |
| I handed in my notice at a private Senior High School last week (NOT a buxiban). |
My first questions would be:
1. Who is your contract signed with � the school or a recruiter? If I remember correctly you are working at a school introduced to you by Dewey so what is the situation in this regard?
2. Whose name is your ARC issued under? Check the name of the employer stated on your ARC.
| Finn76 wrote: |
| The contract is for a year, and I am breaking it roughly half way through for various reasons. I have given them 3 weeks notice so they have plently of time to find a teacher, even though legally I am only required to give a week. |
What does your contract state as far as giving notice? The CLA will require you to give four weeks notice and I would encourage you to do that if you want to ensure no future problems, but if your contract states otherwise then you may find that following your contract is also acceptable. I would confirm this with the CLA however.
| Finn76 wrote: |
| It is stated in my contract that they will with-hold 20,000NT from my last month's pay if I break the contract. I know this is illegal, but exactly which Article says they can not take money out form the LAST month's pay? It is NOT an advance deduction as stated below in Article 26. |
If your contract states a penalty and you agreed to this then I think that the fairest and best thing to do is to just pay the penalty.
In reference to your question Article 26 refers to the requirement of upfront deposits and bonds. That is clearly the intent of this article. However I see a technicality in the English translation that may or may not exist in the Chinese version. Technically, most schools will make the penalty deduction from your last months pay prior to paying this money to you. That could certainly be construed as an advance deduction from your pay and although not strictly within the terms of the initial intention of that article it may be grounds for a challenge if indeed the Chinese version is also ambiguous in this regard.
Like I said earlier, if you have agreed to a penalty upon breach then I believe that you should just accept it and pay it.
| Finn76 wrote: |
| Also, how long after I leave the job will my ARC expire? Is it immediately? In other words, if I don't find a job in time to take over my ARC, do I have to leave the country the next day on a visa run? |
Your safest bet is to assume that you will no longer be in country legally after a week to 10 days of leaving your employer. I say assume as this will vary upon how your employer acts in this regard.
Your employer is required to notify the CLA within 72 hours of you leaving their employ. Once your work permit is cancelled by the CLA then your resident visa and ARC then become invalid within 7 days. The FAP will endeavor to notify you of this but there is no guarantee that you will receive this documentation but it is does not change the fact.
If your employer acts early, they could technically notify the CLA early such that your documents are cancelled sooner than expected, but provided that you can show your last day of work (most likely by stating this on your resignation letter) then you will likely be given a grace period. In some cases your employer may not act promptly in which case your documents could remain valid long after you leave their employ. The problem here is that you will never know when they could be cancelled so it is best to expect the shortest possible time.
If you can arrange the paperwork with another employer prior to leaving then you can stay in country for the change over. If you are late in doing this then you may need to undertake a visa run. |
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ghost
Joined: 30 Jan 2003
Posts: 1693
Location: Saudi Arabia
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| Posted: Wed Mar 01, 2006 3:52 am Post subject: same situation |
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Ghost was in the same situation back in November 2005 when it was 'forced' to resign (or be fired) from a High School somewhere else. As things turned out - ghost was conned into resigning. If it (ghost) had been fired, the school would have had to pay out 3 months salary....and ghost made a big mistake by not reading the fine print on the contract.
With regard to the ARC - DO NOT GIVE IT TO THE SCHOOL! This was the second mistake ghost made.
The school in question mucked around with ghost (not replying to calls and e-mails) and ghost was never able to find out if the ARC that was given back to the school was cancelled or not.
This was a problem when ghost went to the Philippines for Chinese New Year - when ghost tried to get a new 60 day entry at the TECO in Manila, TECO refused to issue one, stating that without 'proof' of a cancelled ARC they could not do anything.
Ghost was lucky to be able to get back into Taiwan, because the officer at the Airport just looked at the original visa stamp duration in the passport (valid till July 31, 2006) and did not ask to see any ARC.....
It is a matter of luck. If you are asked for an ARC and cannot produce one, then you have a potential problem. You could always say that your ARC was stolen - which technically is true - as it is issued to you and not the school.
Ghost is still in Taiwan, and just relies on the original stamp with the extended date......no ARC but no problems - till date.
Ghost in Taichung, Taiwan |
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Northwood
Joined: 08 Nov 2005
Posts: 66
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| Posted: Wed Mar 01, 2006 3:06 pm Post subject: |
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My understanding is that you need to leave the country within 14 days of your work permit being cancelled. Yes, it used to be 7, but is this still the case.
Can anyone confirm? |
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