Balancing Corporate Reality and Labor Protection

Balancing Corporate Reality and Labor Protection
China Times editorial (Taipei, Taiwan, ROC)
A Translation
November 5, 2011

Summary: Huga Optotech and Everlight Electronics fired the first shot, Over mere days, the tech industry suffered an unexpected economic downturn, The Council of Labor Affairs finally admitted that "unpaid leaves are on the rise." President Ma participated in a business forum at the Hsinchu Science Park. The downturn affects both labor rights and corporate survival, The government must balance business reality and labor rights. Being biased towards either party could lead to a lose/lose/lose scenario in which labor, business, and society are all losers.

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Huga Optotech and Everlight Electronics fired the first shot, Over mere days, the tech industry suffered an unexpected economic downturn, The Council of Labor Affairs finally admitted that "unpaid leaves are on the rise." President Ma participated in a business forum at the Hsinchu Science Park. The downturn affects both labor rights and corporate survival, The government must balance business reality and labor rights. Being biased towards either party could lead to a lose/lose/lose scenario in which labor, business, and society are all losers.

Unpaid leaves are a response to reduced orders. When utilization falls below capacity, businesses give unpaid leave to reduce costs and reduce losses. For businesses more flexible manpower usage enables companies to immediately lower costs. Immediately giving employees unpaid leave reduces capital costs. Businesses do not have to bear huge severance costs. The immediate reduction in income often impacts the lives of workers whose salaries were not high to begin with. But on the other hand, the alternative to unpaid leave may well be lay offs. Unpaid leave means workers still have some work, They still have some income. They are at least not completely unemployed.

During the financial tsunami, over 800 domestic companies gave over 200,000 unpaid leaves. The government had a laissez-faire policy. It imposed no legal standards. Once the economic recovery gradually reduced the number of workers on unpaid leave, no one gave it any more thought. But the recent wave of economic decline was unexpectedly rapid. We experience a new downturn even before we experienced a recovery. Unpaid leaves returned, with a vengeance. The government hardly wants to see an increase in the number of unpaid leaves, especially before a general election. Officials resorted to moral suasion. They also imposed legal constraints. Everlight Electronics announced the cancellation of unpaid leaves. It even added that it was "cooperating with government policy." Its statement had unspoken implications.

But based on their statements, government officials have yet to get the point. They remain out of touch with reality. For example, CLA Chairman Jennifer Wang told the Legislative Yuan that the Council of Labor Affairs will draft amendments "enabling employers and employees to reduce working hours." The labor agreement would include provisions for a "corporate commitment to profit sharing." Workers meanwhile would agree to unpaid leave. Employers might "be required to use future profits to make up for lost salaries."

This policy is riddled with problems. Should corporations issue dividends? Different industries have different business practices. They are internal standards. Most companies include them in their articles of incorporation. They are established by the shareholders, They have no relationship to whether employees are given unpaid leave, Businesses which show a profit may issue bonuses to employees. They may offer stock dividends. But these benefits need to be based on long-term growth. Corporations may need to re-invest their profits rather than issue dividends. On the other hand, even businesses which have not turned a profit may wish to encourage employees and boost morale by issuing year-end bonuses or dividends. The circumstances are often different. For the Council of Labor Affairs to artificially link unpaid leave to dividends and profit sharing is unreasonable and difficult to implement. It interferes with sound corporate governance.

Using future profits to "make up" income lost during unpaid leave is obviously infeasible. Unpaid leave represents time the employee did not work. One should not be paid for it in the first place, The Council of Labor Affairs argument about "making up" lost income attempts to look after labor. But it is obviously unreasonable. Businesses would find it unacceptable.

The solutions proposed by the recent forum in Hsinchu Science Park is probably more reasonable and more acceptable to both parties. Business leaders proposed greater flexibility in working hours. But employers and employees disagreed on how. Current law stipulates 48 standard working hours every two weeks. The business community proposed capping standard working hours on a yearly basis. Labor groups voiced strong opposition, They said it had too negative an impact on labor rights. But the standards could be capped on a monthly or bimonthly basis. They could take into consideration the general economic slowdown and reduced orders. More often than not one or two months is enough for a company to recover. This slight relaxation is probably acceptable to business leaders.

Corporations want employees to take unpaid leave only because they have no choice. If the economy is not in decline, if orders are not greatly reduced, businesses will naturally want to run at full capacity. When businesses give unpaid leave instead of laying workers off, it means the expected reduced orders is merely cyclical. But if orders fail to increase, if the long term remains negative, then businesses will lay people off without hesitation. To wit, Quanta and Inventec. If companies cannot survive the transition period via unpaid leave, or if the legal requirements for unpaid leave are too harsh, they will be forced to lay people off immediately. For workers, this is not necessarily a good thing.

On the othe hand, if conditions for unpaid leave are too lenient, workers will become even more vulnerable. If unpaid leave is made a legal requirement, but the conditions are too lenient, the result will be "moral hazard." In the past, when the number of orders fell, companies were still willing to give employees the same salary. But after the unpaid leave system is implemented, and the number of orders fall, businesses may force employees to take unpaid leave in order to save on costs. Labor rights may be even less secure. Therefore one must balance three factors: the protection of labor rights, the maintenance of labor market flexibility, and the requirements of business. One must seek a balance. This will test the government's wisdom and ability.

在企業現實與保障勞工間尋找平衡
2011-11-05 中國時報

從廣鎵、億光開第一槍開始，幾天內驀然發現科技業景氣下滑程度超乎意外，勞委會也終於承認「無薪假有增加趨勢」。馬總統並前往竹科園區與企業座談。面對此一關係著勞工權益與企業生計的大事，在企業現實與勞工權益間，政府宜審慎尋找平衡點，太偏向任何一方，最後都可能造成「三輸」─勞工、企業、社會全成輸家。

無薪假是企業在訂單減少、產能利用率低檔時，為了節省成本、減少虧損，讓勞工休不支薪的假。這種方式，對企業而言，人力更彈性的運用，能讓企業成本立即降低；與立即資遣員工相較，也不必在經營困難之時，猶要支付龐大的資遣費用。對勞工而言，收入立即減少，對許多原本薪資就不高的勞工而言，生活可能馬上受影響；但換個觀點看，如果不是無薪假，企業可能就要裁員；休無薪假，勞工至少仍有工作、也有一定的收入，不至於落入失業困境中。

金融海嘯期間，國內有八百多家企業、共廿多萬人休無薪假；當時，政府採「放任制」，並未訂定辦法規範，待景氣復甦、無薪假逐漸減少後，就更沒人提、沒人想了。只是沒想到這波景氣下滑得如此快速，尚未看到頂峰就已下行，無薪假重出江湖。特別是在大選前，政府當然不樂見無薪假擴大成風潮。官員道德勸說也有、祭出規範限制也有。億光在宣布取消無薪假時，特別說了一句「配合政府政策」，可說是意在言外。

不過，從官員發言來看，官員仍未抓住重點，更未能切合現實。例如，勞委會主委王如玄在立法院說，勞委會將草擬修正「勞雇雙方減少工時協議書範例」，在勞資協議時納入「企業承諾獲利時讓員工可分紅」條文；同時勞工在同意放無薪假時，也可以「將來獲利後資方應回補薪資」作為條件。

這個政策方向，問題不少。企業獲利是否分紅，不同產業、不同企業的作法都不一樣，屬於企業內部規範事宜，一般企業都訂在組織章程中，再由股東會決定，這與員工是否有休過無薪假，實在很難扯上關係。企業有獲利，可能會增發年終獎金給員工，也可能以股票分紅，但也可能基於企業長期發展，需要再投資而完全不分紅。但如企業無獲利，也可能為了鼓勵員工、提振士氣，仍會發出年終獎金或分紅。種種情況、不一而足，勞委會以休過無薪假，作為公司有獲利要分紅的條件，既不合理，亦難執行，更干預原本屬於企業治理的範疇。

至於說有獲利後要「回補」放無薪假時的薪資，更是明顯不通。因為，放無薪假代表的就是正常休假外有沒有上班的天數，原本就不該有薪資，勞委會的「回補」說法，雖然可說顧及勞工收入，但也明顯不合理，企業也難以接受。

較合理而能為勞資雙方接受者，應是日前竹科座談會中，企業提出的擴大工時制度彈性。不過，應該如何擴大彈性，勞資雙方又有得爭了。目前法令的規範是兩周四十八小時工時，對企業界所建議放寬為以「一年計」，勞工團體已表達強力反對立場，認為對勞工權益影響太大；但如僅放寬到一、兩個月，考量到一般景氣低迷、訂單減少，往往不是一、兩個月就能回春，這種小幅放寬，對企業而言，大概也是雞肋。

坦白說，企業要員工放無薪假，基本上是很無奈─要不是景氣下滑、訂單大減，企業當然希望是產能全開。而企業以無薪假而非裁員因應，代表預期現階段的訂單減少只是景氣循環。如果是訂單不再回來、長期看壞，企業大概是二話不說就裁員（如廣達、英業達）。如果這種過度期企業不能以無薪假因應，或是無薪假條件過於嚴苛，反而逼使企業在第一時間就以裁員手段因應，對勞工而言，未必是好事。

但問題是無薪假條件寬鬆，將使勞工更形弱勢；而且把無薪假「法制化」再加上條件寬鬆，更可能引發「道德風險」─過去訂單減少，企業企業還是願意給員工同樣薪資，但有無薪假的制度後，訂單稍減，企業就動輒要員工休無薪假以節省成本，勞工權益更無保障。因此，如何拿捏分寸，在保障勞工權益、保持勞工場彈性、及考量企業實際運作需求等三大面向上，尋求一個最佳的平衡點，將考驗政府的智慧與能力。