[Translator’s note: This is not a literal translation of the letter. Explanations have been added to make the Ministry’s intent clearer. For example, the Subject has been simplified and the last sentence of Section 2 adds an explanation that is not present in the original. The original letter does not refer to Class A-F work permits but instead cites Employment Services Act (“ESA”) §46(1)(1)-(6). The list of factors has been extracted from the original’s narrative presentation for clarity. Please refer to the original Chinese letter when discussing with the WDA. THIS SUMMARY TRANSLATION IS NOT INTENDED AS LEGAL ADVICE. PLEASE CONSULT WITH A LAWYER ADMITTED IN TAIWAN IF YOU HAVE QUESTIONS ABOUT WHETHER YOU NEED A WORK PERMIT FOR A PARTICULAR PERFORMANCE. THE FINE FOR WORKING WITHOUT A WORK PERMIT IS UP TO NT$150,000 FOR A FOREIGN EMPLOYEE WHO WORKS ILLEGALLY. DEPORTATION AND AN EMPLOYMENT BAN ARE MANDATORY. ESA §68]

Letter Ministry of Labor 4F 439 Zhongping Road South Building Contact: Ye You-heng (

)

Telephone: 02-8995-1682 Email: [email protected]

To: Ripplemaker Foundation (

)

1F No. 3, Alley 4, Lane 27 Renai Road, Daan District, Taipei

Date: 18 September 2015 Priority: Urgent Confidentiality: Attachment: See Explanation Section 5 1

Subject: Whether a foreigner with a Class A,B, C, D, E, or F Work Permit for religious work1 must obtain a work permit for an unpaid, amateur performance.

1. The letter is based on decisions made at the meeting convened by the Ministry of Labor on 18 March 2015 regarding “Work Permits for [Class F] Artistic and Performance Work.” (the March 2015 Meeting) 2. The civic organization and agencies that attended the March 2015 Meeting recommended that the Ministry not require a foreign national holding Class A-F Work Permits to apply for a work permit for a brief public performance or public performance without consideration where the performance was motivated by the foreign national’s personal interests. The civic organizations and agencies alternatively recommended that foreign nationals be allowed to report such performances in lieu of obtaining a work permit. The Ministry decided to study the first recommendation further but took the position that Article 43 of the Employment Services Act precluded the Ministry from adopting the second recommendation because Article 43 requires a foreigner to obtain permission to work from the Ministry through an employer. 3. The Ministry compiled performance scenarios, letters of interpretation, and court decisions. On 2 September 2015 it convened a second meeting of experts and concerned agencies to discuss whether the Employment Services Act applies to foreign nationals who work without consideration for their services. The majority view at the meeting was that the purpose of the Employment Services Act is to protect employment opportunities of Taiwanese citizens. However, a performance is not work under the Employment Services Act if the following is true: a. The performance does not impair employment opportunities for citizens; b. The performance takes place outside of the foreign national’s regular employment and arises out of personal interests;

1

Class A: professional or technical work. Employment Services Act (“ESA”) §46(1)(1). Class B: Management of foreign-invested business §46(1)(2). Class C: Teachers at schools. ESA §46(1)(3). Class D: Teachers at Buxibans. ESA §46(1)(4). Class E Coaches and athletes. ESA §46(1)(5). Class F: Artists and Performers. ESA §46(1)(6). Note that the letter expressly excludes foreign nationals holding Class F Artists and Performers from the exemption for amateur unpaid performances. Class F Religious Workers are included in the exemption. The rationale seems to be that foreigners with Class F visas for Artistic and Performance work are professionals who should not be doing unpaid amateur performances in their free time because of the risk that such performances by professionals might take employment opportunities away from citizens.

2

c. The performance is not regular; d. The performance is not in exchange for a proportional payment e. The foreign national is not employed by the promoter of the event or the proprietor of the venue; and f.

The promoter of the event or the proprietor of the venue does not direct or supervise the performance.

4. The Ministry takes note of the advent of internationalization and wishes to encourage foreign nationals in Taiwan to engage in diverse cultural exchanges. Consequently, the Ministry does not require a foreign national holding a Class A-E or a Class F Religious Worker Work Permit to obtain a [separate] work permit for a performance outside the foreign national’s regular employment where the performance meets the multi-factor test in §3 (See example scenarios attached). Originals sent to: National Performing Arts Center, National Association of Small and Medium Enterprises, Chinese Confederation of Entertainment Unions…Ministry of Culture, Small and Medium Enterprise Administration, Ministry of Economic Affairs, National Immigration Agency, Cross-Border Workforce Affairs Center at the Workforce Development Agency (Ministry of Labor) Copies to: Office of Executive Yuan Minister Without Portfolio Jaclyn Tsai, …National Development Council, National Police Agency, … Taipei City Government, New Taipei City Government … [list of all county and city governments].

3

Scenario

1.

2.

3.

4.

5.

6.

A foreign national and friends gather at a private residence; play musical instruments to celebrate a birthday. A foreign national and friends gather at a riverside park; play musical instruments to celebrate a birthday. A foreign national and friends host a party at a bar; play musical instruments to instruments to celebrate a birthday.

A foreign national goes to a bar and is invited on stage to perform. The bar does not offer compensation, nor does the bar charge customers. Every Wednesday a bar holds an ‘Open Mic’ night that is open for performance by individuals who are interested in musical performance or amateur bands. A foreign national and his friends form a band enjoy gong to the bar on Wednesdays because of the opportunity to perform. The bar does not pay the band. A foreign national and some friends who like performing arts rent a theater venue from time

Nature 1.

Private venue

2.

Social event

1.

Non-commercial public venue

2.

Social event

1.

Commercial venue

2.

Social event

1.

No proportional payment

2.

Performer not controlled or supervised by proprietor of venue.

1.

No proportional compensation

2.

Performer not controlled or supervised by proprietor of venue.

Reasoning Private social events are not subject to regulation under the Employment Services Act.

1.

2.

1.

2.

3.

1.

No proportional payment compensation (sharing venue hire and other costs do not 4

The performer is does not receive proportional payment [in exchange for the performance] The nature of the unpaid performance is not changed due to the commercial nature of the venue. No proportional compensation of performers and no control or supervision of performers by venue proprietor. The nature of the unpaid performance is not changed due to the commercial nature of the venue. Payment refers only to payment of the performers. Payment must be consistent with the general concept

to time to put on plays. They do not receive proportional payment but the performers and audience members share the cost of renting the venue and cleaning fees.

7.

A foreign national performs at a public interest music festival that is memorial in nature. The event is free to attend, and the performer is not compensated. Merchandise, drinks and snacks are sold at the venue for profit or not-for-profit.

2.

count as payment) The performance is spontaneous or voluntary. The performers are not controlled or supervised by the venue’s management or audience.

1.

No proportional payment

2.

Public interest event

5

1.

[of payment for services] held by ordinary members of society. To be payment, the payment must be proportional to what might be received for this type of performance. If participants [in the audience and among the performers] share some expenses such as rent for the venue or cleaning fees, the sharing of expenses is not deemed to be payment for the performance because these are expenses and also because they are not proportional to the payment that would ordinarily be expected for a performance of this type. Public interest events not for held for financial gain, but for cultural or information purposes should be treated liberally.

8.

9.

A government agency hosts a cultural event. A foreign national and friends perform a play on stage, interacting with a Taiwanese audience. A supporter of the performing arts regularly provides a venue on weekends for people to come and perform and share their art. A foreign national performs plays and music on stage but is not proportionally paid. The venue sells drinks and snacks.

3.

No proportional

4.

Public interest event

1.

No proportional compensation

2.

The nature of the event is one of free sharing. The owner of the venue does not control or supervise the performers.

6

2.

The selling of drinks and snacks, even for profit does not affect the nature of the unpaid performance.