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(釋字第 726 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.726  [ Legal Effect of Separate Labor-Management Agreement without Filing for Approval and Record under Article 84-1 of the Labor Standards Act ]
Date 2014/11/21
Issue Is a separate labor-management agreement for working hours and other issues without filing for approval and record subject to the restrictions under the Labor Standards Act?
Holding Article 84-1 of the Labor Standards Act is a mandatory regulation whereby the agreed upon working schedule, regular days off, vacation, and night shift for female workers’ night work shall be filed with the local competent authority for approval and record. A separate labor-management agreement without filing for approval and record will not be precluded from the restrictions imposed by Articles 30, 32, 36, 27, and 49 of the Act on the agreement, and will cause a detrimental effect in public law for the employer. In the event of any civil dispute arising from an unreported separate labor-management agreement, the court shall, after taking into account the particular circumstances of each individual case, make proper adjustments to the unreported separate labor-management agreement on working hours and other issues in accordance with the aforementioned Article 30 and so forth of the Act to reflect the legislative objective of protecting the rights and interests of workers, and calculate wages in accordance with Articles 24 and 39 of the Act.
Reasoning Article 84-1 of the Labor Standards Act (hereinafter the “Act”) provides: “(First Paragraph) After the approval and public announcement of the Central Competent Authority, the following types of workers may arrange their own working hours, regular days off, holidays, and female workers’ night work through other agreements with their employers. These agreements shall be submitted to the local competent authorities for approval and record and shall not subject to the restrictions imposed by Articles 30, 32, 36, 37 and 49 of the Act: (1) supervisory, administrative workers, and professional workers with designated responsibility; (2) monitoring or intermittent jobs; and (3) other types of job in special nature. (Second Paragraph) The agreement made under the preceding paragraph shall be in writing and shall use the basic standards contained in the Act as reference and shall not be detrimental to the health and well-being of the workers” (hereinafter the “Provision”). This Provision was amended and promulgated on December 27, 1996 in order to meet the needs of some types of work with special characteristics. The Provision seeks to provide flexibility for certain types of workers to reasonably negotiate working hours and other issues with their employers in accordance with requirements prescribed by the law.

In its 102 Tai-Shang Zi No. 1866 Civil Judgment, the Supreme Court held that, for works being approved and announced by the Central Competent Authority to be applicable under the Provision, a separate labor-management agreement concerning daily work schedule, basic monthly working hours, overtime hours, and calculation method of overtime wages is not invalid under the Provision, despite the fact that such agreement has not been filed with the local competent authority and is thus in violation of administrative regulations. The totality of the meaning and purpose of this Supreme Court judgment indicates that a separate labor-management agreement, though without filing with the local competent authority for approval and record, nevertheless governs the labor-management relations and thus may preclude the restrictions imposed by Articles 30, 32, 36, 37 and 49 of the Act (hereinafter “Articles 30 and so forth”). However, on the other hand, the Supreme Administrative Court held in its 100 Pan Zi No. 266 Judgment that the Provision explicitly states that a separate labor-management agreement is not subject to the restrictions under Articles 30 and so forth only if both the requirements of “separate labor-management agreement” and “filing with the local competent authority” are met. It follows that the labor-management relations under a separate labor-management agreement is subject to the restrictions under Articles 30 and so forth if the separate labor-management agreement has not been filed with the local competent authority for approval and record. The Supreme Administrative Court held the same view in its 98 Cai Zi No. 400 Ruling. Therefore, there is an inconsistency between the opinions held by the Supreme Court and the Supreme Administrative Court, the two courts of final instance within two different judicial hierarchies, on the legal effect and following result of a separate labor-management agreement without filing with the local competent authority for approval and record.

Article 15 of the Constitution provides: “The right of existence, the right of work, and the right of property shall be guaranteed to the people.” Article 153 of the Constitution provides: “(First Paragraph) The State, in order to improve the livelihood of laborers and farmers and to improve their productive skill, shall enact laws and carry out policies for their protection. (Second Paragraph) Women and children engaged in labor shall, according to their age and physical condition, be accorded special protection.” Based upon the meaning and purpose of the aforementioned constitutional provisions, the Act seeks to protect the rights and interests of workers, strengthen the labor-management relations, and promote social and economic development by stipulating the minimum standards of working conditions concerning wages, working hours, regular days off, holidays, retirement, and compensation for occupational accidents. While an employer may, after taking into consideration the nature of its business and the labor condition, separately negotiate the terms of employment contract with workers, such terms may not fall below the minimum standards prescribed by the Act (see J.Y. Interpretation Nos. 494 and 578). In consideration of the legislative objective and regulatory framework of the Act, which not only provides regulations on matters related to the labor relations but also imposes certain duties to act on the employers and penalties with effect in public law for breach of such duties, it is clear that the provisions of the Act are mandatory regulations by nature so as to protect workers (see Article 1 of the Act). Given that working hours, regular days off, holidays, and female workers’ night work are the core issues of the labor relations, and have significant impact on the health and well-being of the workers, the Act thus provides Article 30 and so forth to govern these matters, and sets the minimum standards of working conditions guaranteed by the law. Unless the Act provides otherwise, neither the workers nor the employers may usurp them in the name of freedom of contract.

The characteristics, responsibilities, and performance of different types of work vary from one to another due to the continuing development of the society and the vast expansion of economic activity. The legislature, therefore, set up minimum standards for different types of working conditions. In order to meet the needs of certain special types of work, the Provision allows workers in these types of work, as approved and publicly announced by the Central Competent Authority, to engage in separate negotiation with their employers on working hours and other issues, and enter into separate labor-management agreements precluding the restrictions imposed by Article 30 and so forth if such separate labor-management agreements have been filed with the local competent authority for approval and record. The requirements of “public announcement by the Central Competent Authority” and “filing with the local competent authority” are to realize the protection of the rights and benefit of workers, as well as to prevent arbitrary and abusive practice in determining the scope of special types of work, and the terms of agreement between the workers and the employers. Accordingly, for those approved and publicly announced special types of work, carrying out a separate labor-management agreement without completing the process of filing for approval and record as prescribed by law will cause a detrimental effect in public law for the employer. In addition, the enforceability of the agreement’s terms shall be determined in accordance with the aforementioned constitutional intent to protect workers, as well as the legislative objective of the Provision to prevent arbitrary abuse, and realize the protection of the rights and benefit of workers.

Article 71 of the Civil Code provides: “A juridical act which violates an imperative or prohibitive provision of the act is void except voidance is not implied in the provision.” This provision aims to balance between state control and self-governance. In determining whether a state regulation at issue is an imperative provision under this Article and the legal effect resulting from the violation of such regulation, the purpose and content of the state regulation shall be taken into consideration. Though filing a separate labor-management agreement with the local competent authority in accordance with the Provision is an administrative process, it is a prerequisite for the local competent authority to conduct cautious and substantial review over each case. The facts that the extension of working hours has a significant impact on the health and well-being of workers, and that work of the same nature may vary greatly from one region to another warrant a substantial review by the local competent authority on a case-by-case basis. Moreover, a substantial review by the local competent authority over a separate labor-management agreement protects a worker from being induced to enter into an agreement under undue influence as a worker is generally the weaker party when negotiating with his employer. The requirement of filing a separate labor-management agreement with the local competent authority under the Provision not only is a direct control over the contents of the labor-management relations but also entails control over more than a mere providing of the agreement content for record. It follows that the Provision should naturally be construed as a regulation that has civil legal effect of direct intervention in the labor-management relations. To construe otherwise, i.e., where noncompliance with the filing requirement only causes a detrimental effect in public law for the employer, will not only fail to fulfill the aforementioned legislative objective of the Provision, but also contradict the principle of balancing state control and self-governance under Article 71 of the Civil Code. Accordingly, the “filing with the local competent authority” requirement within the Provision should be deemed to be mandatory under Article 71 of the Civil Code. Moreover, a separate labor-management agreement concerning working hours and other issues can be rather complex, and may contain terms favorable and unfavorable to a worker. In view of the totality of the meaning and purpose of Article 71 of the Civil Code, and Article 1 of the Act, it is hard to directly conclude that a separate labor-management agreement is invalid simply on the ground that such agreement has not been filed for approval and record. Now that the Provision provides that “. . . workers may arrange . . . through other agreements with their employers. . . [, and these] agreements shall be submitted to the local competent authorities for approval and record and shall not subject to the restrictions imposed by . . .,” it follows that failing to file a separate labor-management agreement with the local competent authority for approval and record will not be precluded from the restrictions imposed by Articles 30 and so forth on the agreement. In the event of any civil dispute arising from an unreported separate labor-management agreement, the court shall, after taking into account the particular circumstances of each individual case, make proper adjustments to the unreported separate labor-management arrangement in accordance with the aforementioned Article 30 and so forth to reflect the legislative objective of protecting the rights and interests of workers, and calculate wages in accordance with Articles 24 and 39 of the Act.

The petition for uniform interpretation raised by the petitioners alleges that the Supreme Court’s opinion in its 102 Tai Shang Zi No. 1866 Civil Judgment differs from the reasoning of J.Y. Interpretation No. 494. In light of that Interpretations of the Judicial Yuan shall be binding upon every institution and person in the country (see J.Y. Interpretation No. 185), J.Y. Interpretations shall prevail if a court holds differently. Therefore, this portion of the petition fails to meet the requirements of Paragraph 1, Sub-paragraph 2, of Article 7 of the Constitutional Interpretation Procedure Act, and is hereby dismissed in accordance with Paragraph 3 of the same Article.
Editor's Note SUMMARY OF FACTS
The Kaohsiung branch of the G4S Secure Solutions (Taiwan) Limited (hereinafter the “G4S”) hired the petitioner Jun-Cai Pang (龐俊財) and other six petitioners as security guards for cash-in-transit. The petitioners and the G4S signed and executed employment contracts, but the G4S failed to file those contracts with the local competent authority for approval and record. The petitioners argued that the clause “shall not subject to the restrictions imposed by Articles 30, 32, 36, 37 and 49 of the Act” provided in Article 84-1 of the Act does not apply to their employment contracts because the G4S did not file those contract for approval and record. Thus, their employment contracts are nevertheless subject to the restriction of maximum hours of work under Article 30 of the Act, and their overtime wages shall be calculated in accordance with the methods set forth in Article 24 of the Act. The petitioners sued for overtime pay by alleging that the G4S was in breach of employment contract because the overtime wages the G4S paid were much lower than the average hourly wages of the petitioners and also apparently lower than the amount calculated in accordance with Article 24 of the Act. The Supreme Court dismissed this case in the final disposition of its 102 Tai Shang Zi No. 1866 Civil Judgment.

The petitioners argued that there is an inconsistency between the aforementioned Supreme Court judgment and prior rulings of the Supreme Administrative Court on the application of the same law because the Supreme Court held that a separate labor-management agreement without filing for approval and record is “not invalid,” and is nonetheless subject to the restrictions under Articles 30 and so forth, whereas the Supreme Administrative Court held otherwise. In its 100 Pan Zi No. 266 Judgment and 98 Cai Zi No. 400 Ruling, the Supreme Administrative Court held that a separate labor-management agreement is not subject to the aforementioned restriction only if such agreement has been filed for approval and record. The petitioners also argued that the Supreme Court judgment is inconsistent with the reasoning of J.Y. Interpretation No. 494, and thus petitioned for uniform interpretation.
Opinion
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