▍A Brief Introduction to the Newly Enacted Labor Incident Act
Labor disputes affect not only the individual rights and interests of workers but also the livelihoods of their families. In addition, workers are usually in a disadvantageous position in the litigation process, where the relevant evidence is unilaterally accessible to the employer rather than the worker and thus more difficult for the worker to adduce. In addition, labor disputes are characterized by professionality and specialties and are more reliant on autonomous and mutual consent on the part of both parties as well as their participation. Thus, it is appropriate that they be resolved by both parties autonomously and consensually. Based on the characteristics mentioned above, the Judicial Yuan, therefore, enact the Labor Incident Act (“the Act”) after thorough research in order to resolve labor disputes expeditiously, properly, professionally, effectively, and equally. The Act was promulgated by the President on December 5, 2018 and will be effectuated on January 1, 2020.
The Act is the lex specialis of the Taiwan Code of Civil Procedure. In response to the features of labor disputes, the Act incorporates proper changes in procedural rules of labor dispute litigation under the current legal framework of civil litigation procedures. On the one hand, the Act enables both parties – the employer and the employee – to enjoy substantive equality. On the other hand, the Act requires the court to put more emphasis on labor cases in order to achieve goals including fair labor dispute trials and effective remedies of rights. There are fifty-three (53) articles in the Act. The Act has made the following modifications from the current system to meet procedural needs related to labor dispute proceedings in five major areas: (1) professional proceedings, (2) strengthening the autonomy of the parties and resolving disputes expeditiously, (3) clearing litigation obstacles for workers and making seeking court remedies more convenient, (4) improving the trial process and its effectiveness, and (5) instant, effective provisional remedies.
▍1.Professionalism of the Proceedings
The Act expands the perimeter of labor incidents. The Act further requires each level of the courts to establish professional labor courts and to elect judges who are equipped with experience and knowledge of labor law in order to enhance their capacity to resolve labor disputes.
▍2.Strengthening the Autonomy of the Parties and Resolving Disputes Expeditiously
(1)Establishment of Labor Mediation Procedures: The mediation of a labor dispute must be conducted by the Labor Mediation Committee, which consists of one labor court judge and two committee members familiar with labor incidents. Through an expeditious process, including hearing the statements of both parties, organizing relevant issues in dispute, and, if necessary, investigating the facts and necessary evidence, the Labor Mediation Committee then provides preliminary clarification of facts and legal rules to acquaint the parties with the cause of the dispute and potential legal consequences. On the basis of the clarification of the cause of the dispute and potential legal consequences, the Committee promotes consensual resolution by the parties or proposes an appropriate disposition as a reference for both parties.
(2)The Principle for Pre-filing Mediation: Except for cases specified in the Act, the labor dispute must be mediated by the court before the initiation of an action. The initiation of the action shall be deemed as the motion for requesting mediation when the plaintiff fails to request mediation in advance.
(3)Bridging the Gap between the Mediation Process and Subsequent Litigations: If the mediation is unsuccessful, unless the mediation movant submits an objection to the court concerning the continuation of litigation proceedings within the peremptory period, the court shall continue the case in litigation proceedings presided by the judge on the committee, and it shall be deemed that the action is initiated when the motion for mediation is filed. In principle, the litigation proceeding will be conducted based on investigated facts and evidence from the mediation procedure.
▍3.Clearing Litigation Obstacles for Workers and Making Seeking Court Remedies More Convenient
(1)Favorable Jurisdiction Rules for Workers: In order to make it easier for workers to initiate or defend an action, in addition to the jurisdiction rules in the Code of Civil Procedure, the Act stipulated that the court in the location where the worker provides services has jurisdiction over the action. The defendant worker may make a motion of the court for the purpose of transferring the case to another court that has jurisdiction over the case. When the jurisdiction agreement between the employer and the worker for the first instance in labor cases is clearly unfair, the plaintiff worker may initiate an action in any other court with jurisdiction; the defendant worker may also make a motion for transferring the case to another court that has jurisdiction over the case. The worker is not bound by the previous jurisdiction agreement and may initiate an action in the court of Taiwan if one of following places is located in the territory of Taiwan: the place of service or the place of the defendant’s domicile, residence, office, or place of business.
(2)Adjustment of the Burdens Associated with Litigation Costs: In order not to bar workers from seeking court remedies due the financial burden resulting from costs associated with litigation, the Act stipulates that the value of a claim of an action involving regular payments shall be calculated with a cap set at the worker’s five-year total income. When the worker or the labor unions initiates an action or files an appeal for the confirmation of the existence of an employment relationship, wages payment, pensions, or severance fees, and two-thirds of the court costs may be temporarily waived. In cases where there is compulsory enforcement of an action for which the claim value is more than two hundred thousand New Taiwan Dollars, the enforcement fee on the excess portion of the two-hundred-thousand amount shall temporarily be waived. When a labor union initiates a class action pursuant to Article 42 and Article 44-1 of the Code of Civil Procedure, and the claim value of such an action exceeds one million dollars, the court cost for the excess portion of the one-million dollar amount may be waived. Court costs may be waived for an action initiated pursuant to the Act for injunctive relief prohibiting specific acts.
(3)Reinforcing Litigation Aid: To prevent workers’ lives from becoming unsustainable due to the payment of litigation costs, the Act stipulates that workers who meet the criteria of low-income family and middle-low income family as stipulated in the Social Relief Act, or who meet the requirements of family-in-hardship as stipulated in Paragraph 1, Article 4 of the Act of Assistance for Family in Hardship, petition for litigation aid, they shall be deemed indigent and unable to pay litigation costs. The court may, therefore, approve litigation aid for such workers. In addition, when the worker or his or her heirs initiate a labor dispute action arising from occupational hazards and make a motion for the purpose of obtaining litigation aid, the court shall grant the aid by approving the motion except in cases where there is manifestly no prospect for the worker or his or her heirs to prevail in the action.
(4)Third-Party Aid for Litigant Workers: Pursuant to the Act, workers who would like to be accompanied in a court session by assistants appointed by the labor union or the foundation need no ex-ante approvals from the court or the presiding judge in advance but ex-post review instead. When a foreign worker appoints a non-attorney person affiliated with a foreign labor agency as an advocate, and such an advocate might act detrimentally to the appointing worker’s interests, the court may revoke the approval of such an appointment.
▍4.Improvement of the Trial Process and its Effectiveness
(1)In order to expedite court proceedings, the Act stipulates that both the court and the parties are obliged to facilitate the proceedings and that the proceeding shall be terminated within a specific timeframe.
(2)The principle of the adversarial system is properly adjusted by the Act to allow the court to elucidate the necessary facts for parties to be able to provide and to investigate essential evidence on its own initiative in order to uphold substantial fairness among the parties. When the court hears a labor case, it may consider the facts, evidence and information, dispositions, or appropriate case-resolution proposals investigated by mediators assigned by authorities, a composed committee, or a court labor mediation committee. In addition, the Act also properly modifies the evidentiary rule to make required evidence more available by mandating that the employer is obliged to disclose relevant documents and increasing sanctions on the parties’ or the third-party’s failure to comply with an order to disclose evidence. The Act furthermore facilitates the determination of facts regarding disputes over wages and work hours by presumption of fact. In addition, in order to prohibit the employer from abusing an advantageous economic status, the Act stipulates that the worker is not bound by an evidence contract that is entered in the form of an adhesion contract and is unfavorable and clearly unfair to the worker.
(3)In order to enhance the judgment effectiveness of ensuring the worker’s rights and interests, the Act expands the scope of the declaration of provisional execution on the court’s own initiative. The Act accordingly stipulates that, for workers' compensation claims, the court shall declare the provisional execution on its own initiative when the court delivers a judgment against an employer. In addition, for a labor case filed by a worker in which the court decides to order the employer to engage in a specific action or non-action, the court may also order the employer to pay compensation, as determined by the court, if the employer fails to comply with the order within a specific period of time after the judgment is finalized.
(4)Strengthening the unification of dispute resolution: In order to resolve large-scale labor disputes through the use of a unified procedure, the Act stipulates that when the labor union is appointed by the workers to initiate an action, the labor union may make a motion for the purpose of entering an interlocutory declaratory judgment on common issues in dispute. The court thus enters such judgments to establish a stage-by-stage trial model and to allow other workers who have common interests but have not yet appointed the labor union as their appointed party to join the action in order to unify dispute resolution. In addition, a labor union may, within the scope of its purpose as described in its charter, initiate a lawsuit prohibiting specific acts against an employer who infringes upon the interests of a majority of its members. For workers who have lost their membership in the labor union due to leaving their jobs or who were not able to join a labor union during their employment, pursuant to the Labor Union Act, the Act also stipulates that they are eligible to appoint the original labor union or a confederated labor union as appointed parties to initiate an action on their behalf. The rules stipulated in the Act regarding the appointment of a labor union to initiate the action on behalf of workers, provisional remedy proceedings, and so on are applied to the aforementioned case.
▍5.Instant and Effective Provisional Remedies
(1)Regarding provisional remedies moved by the worker, the Act alleviates the burden of clarification and the duty to provide security by bridging the gap between the provisional remedy proceedings and the decision proceedings related to unfair labor practices, setting limits on and reducing security and mandating the court’s obligation to elucidate and clarify such matters. Through the measures specified above, the Act ensures workers’ rights to secure their rights on a timely basis.
(2)The Act substantializes elements related to necessity and the disputed legal relationship specified in the Code of Civil Procedure according to the dispute with respect to confirmation of the existence of an employment relationship, disputes related to unlawful job transfers, or the motion situation by considering the features of the labor relations. With these measures mentioned above, the Act makes it easier for workers to move for and to clarify a temporary status quo injunction. The court then further decides at its own discretion according to the specific case situation whether to the employer must maintain employment and pay wages or whether the court will grant a temporary status quo injunction based on the worker's motion for the purpose of continuing employment in the original position or working in a new position that both parties agree upon.
- Release Date : 2020-02-19
- Update : 2021-07-09