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勞動事件新制簡介

▍前言


勞資爭議事件除影響勞工個人權益外,更影響其家庭生計,且勞工在訴訟程序中通常居於弱勢,相關證據偏在於資方,不利勞工舉證;又勞資事務具有專業性及特殊性,有賴當事人自主合意解決及勞資雙方代表參與程序,並宜由雙方當事人自主性、合意性解決。基於上述特性,司法院為期迅速、妥適、專業、有效、平等地處理勞動事件,遂研究制定勞動事件法(下稱本法),經總統於107年12月5日公布,自109年1月1日施行。

本法性質為民事訴訟法的特別法,因應勞資爭議之特性,在既有的民事訴訟程序架構下,適度調整勞動事件爭訟程序規定,一方面使勞雇雙方當事人於程序上實質平等,另一方面也使法院更加重視勞動事件之處理,以達成勞資爭議的實質公平審理,有效的權利救濟之目標。本法全文共53條,以「專業的審理」、「強化當事人自主及迅速解決爭議」、「減少勞工訴訟障礙,便利勞工尋求法院救濟」、「促進審判程序與實效」及「即時有效的權利保全」五大方向的制度調整,來因應處理勞動事件之程序上需求。


▍壹、專業的審理


擴大勞動事件範圍,各級法院並應設立勞動專業法庭,遴選具勞動法相關學識、經驗之法官處理勞動事件,以提高紛爭解決效能。


▍貳、強化當事人自主及迅速解決爭議


一、建立勞動調解程序

由1位法官與2位分別熟悉勞資事務的勞動調解委員共同組成勞動調解委員會,進行調解。勞動調解委員會先經由快速的程序(包括聽取雙方陳述,整理爭點,必要時並可調查證據),對於事實與兩造法律關係予以初步解明,並使當事人瞭解紛爭之所在,及可能的法律效果,再於此基礎上促成兩造自主合意解決,或由勞動調解委員會作成解決爭議之適當決定,以供兩造考量作為解決之方案。

二、勞動調解前置原則

除部分法定例外情形外,原則上勞動事件起訴前,需先經法院行勞動調解程序,如當事人未先聲請調解逕為起訴,仍視為調解之聲請。

三、勞動調解程序與後續訴訟之緊密銜接

勞動調解不成立時,除調解聲請人於法定期間內向法院為反對續行訴訟程序之意思外,法院即應由參與勞動調解委員會的同一法官續行訴訟程序,並視為自調解聲請時已經起訴,且原則上以勞動調解程序進行中已獲得事證資料之基礎進行。


▍參、減少勞工訴訟障礙,便利勞工尋求法院救濟


一、便利勞工的管轄原則

為使勞工易於起訴及應訴,勞動事件之管轄法院除依民事訴訟法規定外,本法明定可由勞工的勞務提供地法院管轄;如勞工為被告,亦得聲請移送至其他有管轄權之法院。如勞工與雇主間第一審管轄法院之合意有顯失公平的情形,勞工可以逕向其他有管轄權之法院起訴,如為被告,亦得聲請移送至其他有管轄權之法院。又只要勞務提供地或被告之住所、居所、事務所、營業所所在地在我國境內,勞工就可以向我國法院提起勞動事件之訴,縱使勞雇間原先有相反於此的審判管轄約定,勞工也不受拘束。

二、調整程序費用負擔

為降低因程序費用負擔造成勞工尋求法院救濟之門檻,本法明定因定期給付涉訟之勞動事件,其訴訟標的價額最多以5年之收入總額計算。勞工或工會提起確認僱傭關係或請求給付工資、退休金、資遣費之訴或上訴時,暫免徵收裁判費2/3;其強制執行標的金額超過新臺幣(下同)20萬元部分,暫免徵收執行費。工會提起團體訴訟,其請求金額超過100萬元之部分暫免徵收裁判費;依本法規定提起不作為訴訟,免徵裁判費。

三、強化訴訟救助

為避免勞工因支出訴訟費用致生活陷於困窘,本法明定勞工符合社會救助法規定之低收入戶、中低收入戶,或符合特殊境遇家庭扶助條例第4條第1項之特殊境遇家庭,聲請訴訟救助時,即視為無資力支出訴訟費用救助,法院得准予訴訟救助。又勞工或其遺屬因職業災害提起勞動訴訟,而聲請訴訟救助的話,除所提起之訴有顯無勝訴之望的情形外,法院應以裁定准予訴訟救助。

四、勞工進行訴訟的第三人協助

勞工欲於訴訟期日偕同由工會、財團法人指派之人為輔佐人,本法明定不需先經法院或審判長的事前許可,而改為事後再審查。外籍勞工委任外籍勞工仲介單位之非律師人員為訴訟代理人時,如有害於委任人之權益時,法院得撤銷其許可。


▍肆、促進審判程序與實效


一、為期使法院處理程序迅速進行,明定法院與當事人都負有程序促進義務,並應限期終結程序。

二、適度調整辯論主義,法院為維護當事人間實質公平,應闡明當事人提出必要的事實,並得依職權調查必要的證據;法院審理勞動事件時,亦得審酌就處理同一事件而由主管機關指派調解人、組成委員會或法院勞動調解委員會所調查的事實、證據資料、處分或解決事件的適當方案。此外亦合理調整證據法則,明定雇主之文書提出義務,加重當事人、第三人違反證物提出命令的效果,以強化取得所需之證據;並以事實推定之方式,促進對於勞資雙方關於工資、工作時間爭執之事實認定;另為避免雇主濫用優勢之經濟地位,與勞工以定型化契約之方式,訂立對勞工不利而顯失公平之證據契約,明定於此情形勞工不受其拘束。

三、為強化判決對勞工權益保護之實效性,本法擴大法院依職權宣告假執行的範圍,明定就勞工之給付請求,法院為雇主敗訴之判決時,應依職權宣告假執行。又法院就勞工請求之勞動事件,判命雇主為一定行為或不行為時,得依勞工之請求,同時命雇主如在判決確定後一定期限內未履行時,給付法院所酌定之補償金。

四、強化紛爭統一解決:為利於大規模勞資紛爭事件的統一解決,本法規定工會受勞工選定而起訴時,得對共通爭點提起中間確認之訴,法院並應先予裁判,以建立分階段審理模式,並使其他有共同利益而未選定工會起訴之勞工,亦得併案請求,以擴大紛爭之統一處理。另工會於章程所定目的範圍內,亦得對侵害其多數會員利益之雇主,提起不作為之訴。對於因離職而喪失原屬工會之會員身分,或在職期間依工會法沒有可以參加之工會的勞工,本法亦明定得選定原屬工會或工會聯合組織為之起訴,並同樣適用本法關於由工會為會員勞工進行訴訟、保全程序等相關規定。


▍伍、即時有效的權利保全


一、關於勞工聲請保全處分,本法藉由強化與不當勞動行為裁決程序之銜接、擔保金之上限與減免及明定法院之闡明義務,以減輕勞工聲請保全處分的釋明義務與提供擔保的責任,並保障其及時行使保全權利。

二、斟酌勞動關係特性,就勞工因確認僱傭關係存在與否的爭執或調動違法的爭執中,聲請定暫時狀態處分之情形,本法將民事訴訟法所定爭執法律關係及必要性等要件予以具體化,使勞工較易於聲請及釋明,由法院依個案具體狀況裁量是否為繼續僱用及給付薪資,或依原工作或兩造所同意工作內容繼續僱用的定暫時狀態處分。


▍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.


勞動事件法介紹簡報

 

  • 發布日期 : 108-10-27
  • 更新日期 : 109-01-20
  • 發布單位 : 民事廳
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