Farmers hiring workers, beware of landmines! Failure to insure according to law led to a claim of 300,000! Cai Peihui: This is not an isolated case; the Council of Agriculture and the Ministry of Labor should negotiate supporting measures.

The agricultural labor shortage is severe. Some farmers follow the traditional "mutual labor exchange" practice of asking relatives and friends to help, or hire workers from outside. However, most farmers may not know that these common rural daily-wage labor arrangements all fall under the jurisdiction of the Labor Standards Act. Even if only one person is hired to help with harvesting for one day, employment insurance must be taken out. If five or more helpers are hired at one time, labor insurance is mandatory. But farmers usually do not realize that they are "employers" and often unknowingly edge toward violating the law.

A case recently occurred in which farmer Zhang Hongtian hired helper Mr. Xiao to manage his orchard short-term. However, because Zhang felt unwell and underwent surgery, and the surgery caused an infection that led to a one-year hospital stay, during which he asked Mr. Xiao to care for the orchard throughout, the whole period lasted about one and a half years. Unexpectedly, half a year after the employment ended, Xiao filed a civil claim against him, arguing that Zhang had not taken out labor insurance, health insurance, or employment insurance, and demanding compensation for "severance pay and advance notice wages," "labor pension contributions," "unemployment benefits," and "occupational accident compensation," totaling 300,000 yuan.

Zhang Hongtian was devastated and petitioned the Ministry of Labor and the Council of Agriculture for an explanation. But the Ministry of Labor held that agriculture is governed by the Labor Standards Act, saying, "Just the fact that the employer did not create a worker roster or keep wage records is enough to impose a fine." The Council of Agriculture held that the competent authority for the Labor Standards Act is the Ministry of Labor, and that the Council can only remind farmers to avoid risks. Cai Peihui, a former legislator long devoted to rural movements, said that the situation Zhang Hongtian faces is not an isolated case and has broad impact, and that the Ministry of Labor and the Council of Agriculture should negotiate together to seek long-term supporting measures that can resolve it.

"Paying by the day to help with farming" turns into a "labor dispute," and the farmer faces a claim of 300,000

Zhang Hongtian is now seventy years old. Before retiring, he began taking classes at an agricultural research and extension station to learn organic agriculture and natural farming. At age 60, he "gave up industry for farming," first growing non-toxic sweet potatoes and also successfully growing wheat. Three years ago, he turned the two-and-a-half-fen farm plot he inherited in Zhongpu, Chiayi, into a passion fruit orchard.

In the spring of 2018, Zhang Hongtian planned to undergo knee replacement surgery, estimating that surgery and recovery would take about several months, so he found Mr. Xiao, who was registered as seeking work, through the Chiayi employment service station, and the two agreed that Xiao would manage the orchard on a daily-wage basis. Unexpectedly, after surgery he developed osteomyelitis from an infection, beginning a long process of treatment and recovery. He was hospitalized for more than a year. After discharge, he still needed rehabilitation and to recuperate, and during this period he continued to hire Mr. Xiao to care for the orchard.

But because his recovery was not as expected, the doctor told Zhang Hongtian that his physical condition no longer allowed him to engage in farming. In June 2019, he proposed to Xiao that they end the cooperation. Unexpectedly, at the end of the year, Xiao filed a civil claim against him, arguing that he had not taken out labor insurance, health insurance, or employment insurance, and demanding compensation for "severance pay and advance notice wages," "labor pension contributions," "unemployment benefits," and "occupational accident compensation," totaling 300,000 yuan.

"Farming brings meager income, and looking for workers when short-handed is like carrying an unscheduled bomb?"

Suddenly becoming a defendant surprised Zhang Hongtian greatly. In his impression, farmers hiring workers, "hiring someone to help today, being hired to work tomorrow," with daily pay, was a very ordinary thing. How could a compensation lawsuit arise? On one hand he asked around everywhere, and on the other he petitioned then-legislator Wu Kunyu to seek an explanation from the Ministry of Labor and the Council of Agriculture.

On December 31 last year (2019), Wu Kunyu convened a coordination meeting with the Council of Agriculture and the Ministry of Labor regarding Zhang Hongtian's petition. When Zhang Hongtian heard a Ministry of Labor official mention that "once the Labor Standards Act applies, just the fact that the employer did not create a worker roster or keep wage records is enough to impose a fine," he could hardly believe it and wept on the spot. He lamented the plight of farmers: "Farming brings meager income, finding workers when short-handed is already troublesome enough, and once you find someone you still have to carry an unscheduled bomb?"

Council of Agriculture: Amending the Labor Standards Act is highly difficult; recommends that employers hire workers from among acquaintances and relatives to avoid disputes

Qiu Dingxiang, the Council of Agriculture official who attended the coordination meeting, explained: "The Council of Agriculture is not the competent authority for the Labor Standards Act, nor can it contradict the Labor Standards Act. Zhang Hongtian's claim that this case should be exempt from the Labor Standards Act is not something the Council of Agriculture can decide."

Qiu added, "If there are situations where the Labor Standards Act does not apply (for example, domestic caregivers are excluded from its scope), the Ministry of Labor will explain through an interpretive letter, but in this case the Ministry of Labor suggests that the employer negotiate with the worker, and if they cannot settle, only the court can rule." In other words, the Ministry of Labor believes this case cannot be excluded from an employer-employee relationship.

Cai Peijun, executive secretary of the Agricultural Manpower Office under the Council of Agriculture's Counseling Division, said: "Amending the current Labor Standards Act is highly difficult. It is recommended that when farmers hire workers, they try to rely on familiar relatives and friends to avoid disputes; or when hiring, both parties must agree on a contract relationship (outsourcing the work), avoiding a direction/subordination relationship, so as to avoid later labor disputes." For example, in the custom cultivation system, when a harvester comes to finish harvesting, the farmer only receives the result and does not intervene in the process. There is no direction/subordination relationship between the two parties, so it counts as a contract.

Farm households hiring workers step into a "gray zone of lawbreaking"

She acknowledged that most farm households hire workers on a small scale. Although those with fewer than five people are exempt from mandatory labor insurance, regardless of the number of working days, under labor laws there are still obligations to make labor pension contributions and mandatory employment insurance, as well as gray areas involving lawbreaking such as the risk of occupational accidents for employees.

Facing the labor shortage problem and the risk of labor disputes from hiring manpower on their own, Cai Peijun said the Council of Agriculture has already promoted a manpower team system in farmers' associations around the country, letting farmers' associations take on the employer role of a dispatch company, so farm households have workers they can call on and are spared from hiring workers on their own and bearing employer responsibility.

Regarding the manpower team plan proposed by the Council of Agriculture, actual inquiries with farmers' associations around the country found that not all farmers' associations have set up agricultural technical teams, and the scale of manpower and technical needs may not necessarily meet farmers' needs.

Lin Shunhe, director-general of the Pingtung Hengchun Farmers' Association, said there are currently 40 agricultural technical team members. The farmers' association is the nominal employer of the technical team, but in practice it is only responsible for matching. Farm households from various places come to register the number of workers needed for projects, and the farmers' association dispatches them uniformly. The support range covers Manzhou, Checheng, and Fangshan. In practice, it has not fully solved the labor shortage problem, since agriculture is seasonal.