Dear Friends:

On November 9, 2018, the Legislative Yuan passed its third reading of the Labor Procedure Act, which is pending the announcement by the President.  As the Act has a significant impact on labor disputes, we summarize the key points of the Act below:

1. Definition of labor affairs:  It includes the civil disputes arising from labor laws and regulations, collective agreement, work rules, resolution of labor-management meeting, labor contract, labor custom or practice, business-education cooperation, gender equity in employment, employment discrimination, occupational accident, dispute conduct, non-compete restriction and other labor related matters. (Article 2)

2. Definition of employee and employer:  The definition of employees refers to employees, technicians, foster workers, interns, students under business-education cooperative project, apprentices, job applicant and other persons providing labor to receive remuneration due to subordinate relationship.  An employer refers a person employing others, the person who exercises management power or right on behalf of the employer, the person who actually directs, supervises and manages the work of secondees according to the secondment agreement, and the person who recruits apprentices or the host business organization and recruiters under the business-education cooperative projects. (Article 3)

3. Special court tribunal of labor affairs:  The court of each instance shall set up a special and professional tribunal (or unit) of labor, and select those who are equipped with expertise and experience of labor law as the judges of special tribunal of labor. (Article 4)

4. Jurisdiction of labor matters:  For an employee to be the plaintiff, such lawsuit may be filed to the court in the jurisdiction where the employee provides services, or where the place of the employer's domicile or residence, the office or place of business is.  For an employer to be the plaintiff, such lawsuit shall be governed by the court in the jurisdiction where the place of the defendant's domicile or residence is, or where the employee currently or finally provides services.  Any jurisdiction agreement in violation of the above does not bind the employee. (Articles 5, 6, 7)

5. Assisting party of the employee:  During the labor dispute, the employee may be present to the procedure with proper personnel appointed by the labor union or financial juristic person to assist the employee within the scope as defined in its organization articles or constitutional documents.  The appointment is subject to no approval by the judge. (Article 9)

6. Claimed amount under labor disputes:  In matters arising from periodical performance, a claim's value shall be the total amount of income for the entire duration of the existence of the right to such performance, subject to a ceiling of five (5) years.  When an employee files a lawsuit or appeal for ascertainment of the employment relationship, payment of wage, pension or severance, two-thirds (2/3) of the court fee can be exempted for the time being upon filing.  When a labor union is appointed as a party to file a lawsuit, the court fee calculated for the claim value exceeding NT$1,000,000 is exempted for the time being upon filing. (Articles 11, 12, 13)

7. Mediation:  Labor affairs are generally subject to mediation by the court before an action is initiated, and the labor mediation committee shall be composed of one judge of special tribunal of labor and two (2) mediators of the labor mediation committee.  Subject to the agreement of both parties, the labor mediation committee may propose the terms of mediation, and the mediation shall be deemed successful.  If both parties are unable to reach an agreement, the mediators of the labor committee shall propose a proper resolution on its own initiative.  If the parties fail to object to the proposed resolution within ten (10) days after the service of the resolution, the mediation shall be deemed successful.  If the mediation fails, the litigation proceeding shall resume by the judge engaged in the mediation proceeding. (Articles 16-31)

8. Direction of court proceeding:  To have a speedy dispute proceeding, the oral debate shall be concluded in one oral-debate session in principal.  The first instance shall be concluded within six (6) months, unless the case involves complication or review process otherwise requires.  The court may order the party to present necessary evidences and factual information and may investigate evidence on its own initiative and take the fact and evidences investigated in meditation proceeding into consideration. (Articles 32, 33, 34)

9. Burden of proof and presumption of fact:  If a holder of documentary evidence disobeys an order to present documents without giving a justifiable reason, the court may fine the holder and enforce the holder to present accordingly.  The payment delivered from the employer to the worker in employment shall be presumed as wage; the attendance time in attendance record of the worker shall be presumed that the worker has been permitted to perform his/her duties by the employer, so as to reduce the burden of proof on the employee. (Article 35, 36, 37, 38)

10. Litigation right of labor union:  A labor union may, to the extent permitted by the purposes as prescribed in its bylaws, file a lawsuit for injunctive relief prohibiting specific acts against the employer who has violated the interests of the majority members concerned.  The said litigation shall be proceeded by the attorney retained, and the attorney fee shall constitute a part of the litigation fee.  The labor union may also file a lawsuit subject to the appointment of its members. (Article 40, 41, 42, 43)

11. Provisional seizure or injunction proceeding:  An employee applying for a decision on the unfair labor practice according to the Act for Settlement of Labor-Management Disputes may apply to the court for provisional remedies meanwhile.  An employee files a lawsuit for payment of wage, subsidy or compensation of occupational accident, pension, severance, and ascertainment of employment relationship, the security bond required for the seizure or injunction proceeding may be up to one-tenth (1/10) of the claimed amount only.  As requested, the court may order a temporary order that the employer shall make a certain payment in advance or shall continue its employment with the employee. (Articles 46, 47, 48, 49, 50)

Paul Hsu / Echo Yeh