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In brief

To address the challenges arising from an aging population, the Middle-aged and Senior-aged Employment Promotion Act (the Act) was promulgated in December 2019 but only came into force on 04 December 2020 due to the impact of the COVID-19 pandemic. The purpose of the Act is to increase the employment rate for middle-aged (45 to 65 years old) and senior-aged (over 65 years old) people, including citizens and qualified foreigners.


Contents

The following are the key takeaways:

1. Prohibition on discrimination against middle-aged and senior-aged employees

Notwithstanding that the Employment Service Act has already prohibited age discrimination, the Act provides further protections to middle-aged and senior-aged employees.

Definition of Prohibited Differential treatment

The Act prohibits differential treatment for middle-aged and senior-aged employees and job seekers unless there is an applicable legal exception, e.g. the rationale is based on the requirements or special features of the job.

‘Differential treatment’ means any unfavorable treatment in the following instances: (1) recruitment, performance evaluation or promotion, (2) education and training, (3) wages and benefits, and (4) retirement and termination.

Remedies Available to the Employee

In the case of such discrimination, an employee can file a complaint to the labor authority, and the employer may be fined. The employee can also claim for any damages as a result of unfair differential treatment.

Allocation of Burden of Proof

If an employee/job seeker files a complaint about illegal differential treatment as described above, the burden of proving that the differential treatment is not based on age or has an applicable legal exception lies with the employer.

2. Subsidies/Awards Available for the Employer

To incentivize employers to hire/retain middle-aged and senior-aged employees, the Act provides subsidies/awards to the employer if it does any of the following:

(1) Keeping middle-aged and senior-aged employees gainfully employed;

(2) Employing unemployed middle-aged and senior-aged people, and/or

(3) Assisting or re-employing retirees.

3. Senior-aged People Can Be Hired on a Fixed-term Basis

In principle, fixed-term contracts are allowed only if there is an applicable legal exception outlined in the Labor Standards Act.

However, to incentivize the employment of senior-aged people, the Act allows employers and employees to enter into a fixed-term contract if the employees are more than 65 years old.

If a more detailed explanation or further assistance is required, please feel free to contact us. Thank you.

Author

Seraphim Ma is a partner in Baker McKenzie's Taipei office, where she practices in labor and employment law, intellectual property, and dispute resolution. She is also a pioneer in the rapidly growing China practice, assisting clients who conduct business in the mainland.

Author

Howard Shiu is a partner and member of the Employment Practice Group in Baker McKenzie, Taipei. He focuses on trust law and dispute resolution. He was recognized as a Notable Practitioner by Chambers Asia Pacific 2016.

Author

Roger Chao is an associate in Baker McKenzie Taipei office.