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Key Points of the Newly Amended Settlement of Labor Disputes Act |
2009/07/16 |
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The amendment to the Settlement of Labor Disputes Act (the "Amendment") was approved
by the Legislative Yuan on June 5, 2009 and publicly announced by the President
on July 1, 2009. Since the Amendment significantly revised the Settlement of Labor
Disputes Act, and it introduced the "Decision-Making Procedure" as a statutory dispute
resolution proceeding, we hereby summarize below the Amendment. In addition, given
that the effective date of the Amendment is to be further designated by the Executive
Yuan, we expect that once the Legislative Yuan approves the amendment to the Labor
Union Act, the Executive Yuan will publicly announce that the amendments to the
three major labor legislation (the Labor Union Act, the Settlement of Labor Disputes
Act and the Collective Agreement Act) shall take effect at the same time.
I. Conciliation
The Amendment stipulates that the competent authority where the worker involved
in the dispute provides his/her services has jurisdiction to conduct the conciliation
(Article 9). The Amendment adds the designated conciliator mechanism and sets forth
the procedure of conciliation as follows:
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1. |
Designation of Conciliator (Article 12)
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The competent authority shall designate a conciliator within 3 days of receipt of
the conciliation application form. The conciliator shall conduct the conciliation
within 7 days of the designation, and conclude a conciliation proposal within 10
days of the conciliation.
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Conciliation Commission (Articles 14-16)
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The parties to the dispute shall select its own conciliator within 3 days of receipt
of the notice from the competent authority. Within 14 days of completing the selection,
the competent authority shall establish a conciliation commission and hold a conciliation
meeting. Conciliators appointed by the commission to investigate the dispute shall
submit the investigation report and solution proposal to the commission within 10
days of the appointment. The conciliation commission shall hold a meeting within
15 days (extendable by 7 days if necessary or with the parties' consent) of receipt
of the investigation report and solution proposal to conclude a conciliation proposal.
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II. Arbitration
This Amendment allows either party to a dispute of adjustment matters to submit
the dispute to the competent authority for arbitration if (i) the worker is a teacher
or is employed by the Department of Defense, its affiliated agencies or schools,
or (ii) the employer is in the water-supply industry, power- or fuel- supply industry,
medical-care institutions, financial information service industry conducting transfer
and settlement of funds between banks, securities or futures trading, settlement,
custody industry, or other business that handles payment systems, and the worker
and employer failed to enter into terms and conditions regarding the required services
(Article 25). This Amendment adds the single arbitrator mechanism and sets forth
the procedure of arbitration as follows:
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1. |
Single Arbitrator (Articles 27, 33, 35)
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The parties to a dispute shall select a single arbitrator within 5 days of receipt
of the notice from the competent authority. The single arbitrator shall investigate
the dispute and provide the outcome of the investigation within 10 days of beginning
the investigation. The single arbitrator shall make the arbitration judgment within
20 days (extendable by 10 days upon the parties' consent) of providing the outcome
of the investigation.
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2. |
Arbitration Commission (Articles 29, 31, 33, 35)
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The parties to a dispute shall select their own arbitrators within 5 days of receipt
of the notice from the competent authority. After the arbitrators are selected,
the competent authority shall request the arbitrators to select a chief arbitrator
within 7 days. The competent authority shall establish an arbitration commission
within 14 days of the selection of the chief arbitrator and hold an arbitration
meeting. The arbitrators designated by the arbitration commission to investigate
the dispute shall submit the investigation result within 10 days of the designation.
The arbitration commission shall conclude an arbitration judgment within 20 days
(extendable by 10 days with the parties' consent) of receipt of the investigation
result, and complete an arbitration award within 10 days of concluding the arbitration
judgment.
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III. Decision-Making Procedure
The decision-making procedure is a procedure first introduced by the Amendment.
The grounds for filing for a decision may be (i) the dispute is over Paragraph 2,
Article 35 of the Labor Union Act[1] ; or (ii) the dispute is over Paragraph 1, Article 35[2] of the Labor Union Act or Paragraph 1, Article 6[3] of the Collective Agreement
Act. Procedures and the timetable for applying for a decision and obtaining a decision
are as follows:
Within 7 days of receipt of the application form for decision, the competent authority
shall hold a commissioners' meeting. The commissioner thus designated shall complete
the investigation report within 20 days (extendable by 30 days if necessary) of
the designation. Another commissioners' meeting shall be held within 7 days of the
completion of the investigation report, and a decision shall be made within 30 days
(extendable by 30 days with the consent of the majority of the commissioners) of
the meeting (Articles 44, 45).
In addition, for decisions made for the civil disputes in accordance with Paragraph
2, Article 35 of the Labor Union Act, if either party fails to file a civil lawsuit
against the other party to the dispute, or withdraws such lawsuit within 30 days
of receipt of the original of the decision, the parties will be deemed to have reached
an agreement on the decision. For decisions that are deemed to have been agreed
on by the parties, the commission shall submit the decision to the court for approval
within 7 days of the expiration of the above 30-day period. A decision approved
by the court has the same effect as an irrevocable civil judgment (Article 49).
For decisions made for disputes in accordance with Paragraph 1, Article 35 of the
Labor Union Act, or Paragraph 1, Article 6 of the Collective Agreement Act, if the
decision indicated that the employer violated Paragraph 1, Article 35 of the Labor
Union Act, or Paragraph 1, Article 6 of the Collective Agreement Act, the employer
will be subject to an administrative fine in accordance with Article 45[4] of the
Labor Union Act or Article 32[5] of the Collective Agreement Act. The party that is unsatisfied
with the decision may bring administrative litigation within 2 months of receipt
of the decision (Article 52).
IV. Protesting Activities
This Amendment adds the requirements and restrictions on protests as follows.
A labor union shall not call a strike until the strike has been approved by the
majority of the members of the labor union via direct, anonymous vote. A labor union
may not call a strike until the union and the employer have entered into terms and
conditions for required services if the employer belongs to any of the following
business: (i) water-supply business; (ii) power- or fuel- supply business; (iii)
medical-care institutions; or (iv) financial information services business engaging
in the transfer or settlement of funds between banks, securities or futures trading,
settlement, custody business and other business handling payment systems (Article
54).
During the conciliation, arbitration or decision-making, a labor union may not call
a strike or conduct other protesting activities. A protesting activity may be conducted
only after the conciliation founders. A strike is not allowed if: (i) the disputes
are related to right matters; or (ii) the workers are teachers or (the workers are
employed by the Department of Defense or its affiliated agencies or schools (Article
54).
An employer may not claim damages arising from the protesting activities against
the labor union or its members. Where the protesting activities conducted by the
labor union or its members constitute a crime under the Criminal Code or other special
criminal codes, such activities will not be punishable if there are legitimate reasons.
However, such exception will not apply where a person's life or body is hurt or
is likely to be hurt by force or intimidation (Article 55).
V. Penalty
During the conciliation, arbitration, and decision-making procedure, the parties
and relevant persons shall cooperate with the investigation, and shall not make
any false statements, provide untrue information or refuse to explain without legitimate
reasons. A person who makes false statement or provides untrue information will
be subject to administrative fines of NT$30,000 to NT$150,000. A person who refuses
to explain or forbids the conciliator or conciliation commissioner to enter the
sites of operations will be subject to an administrative fine of NT$10,000 to NT$50,000
(Article 63).
If the parties to the dispute fail to attend the conciliation meeting in accordance
with the notice without legitimate reasons, they will be subject to an administrative
fine of NT$2,000 to NT$10,000.
In addition, during the conciliation, arbitration or decision-making, the employer
may not suspend business, terminate the operations, terminate the employment agreements
or take any action against the workers' interests. Violation of this provision carries
an administrative fine of NT$200,000 to NT$600,000 (Article 63).
We have established the Labor Practice Group specializing in the filed of labor
affairs. Should you have any inquiries above the Amendment or other labor related
laws and regulations, please feel free to contact our experts Mr. T.C. Chiang or
Mr. Lawrence Yu.
Footnote :
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1. |
Please note that the Labor Union Act referred to herein
means the Amendment to the Labor Union Act approved by the Executive Yuan in 2009.
Such Amendment has not been approved by the Legislative Yuan.
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2. |
Article 35 of the Labor Union Act: An employer or a person
with management authority acting on behalf of the employer may not commit any of
the following acts: (i) deny the employment of, lay off, demote, or decrease the
salary of a worker or otherwise mistreat the worker because of the worker's organizing
or enrolling in the labor union or participating in the activities of the labor
union or assuming official duties in the labor union; (ii) impose non-union membership
or not serving as a union officer as the condition for hiring a worker or job-seeker;
(iii) deny the employment of, lay off, demote, or decrease the salary of a worker
or otherwise mistreat the worker because the worker requests a collective agreement
or is involved in affairs related to a collective agreement; (iv) lay off, demote,
or decrease the salary of a worker or otherwise mistreat the worker because the
worker participates in or supports protesting activities; or (v) interfere with,
prevent or forbid the incorporation, organization, or the activities of the labor
union. The layoff, demotion, decrease of salary as indicated in the previous paragraph
effected by an employer or a person exercising its management authority on behalf
of the employer shall be null.
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3. |
Paragraph 1, Article 6 of the Collective Agreement Ac:
The employer and workers shall negotiate the collective agreement in good faith,
and shall not refuse the negotiation proposed by the other party without legitimate
reasons.
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4. |
Article 45 of the Labor Union Act: If an employer violates
Paragraph 1, Article 35 of the Labor Union Act and a decision has been made in accordance
with the Settlement of Labor Disputes Act, the central competent authority will
impose on the employer an administrative fine of NT$30,000 to NT$150,000. If an
employer violates Item 1, 3, or 4, Paragraph 1, Article 35 and fails to take certain
action or observe certain prohibition within the time limit set in the decision,
the central competent authority will impose on the employer an administrative fine
of NT$60,000 to NT$300,000. If an employer violates Item 2 or 5, Paragraph 1, Article
35 and fails to take certain action or observe certain prohibition within the time
limit set in the decision in accordance with the first paragraph, an administrative
fine of NT$60,000 to NT$300,000 will be imposed on the employer by the competent
authority, and the competent authority may order the employer to take corrective
measures within a time limit. Consecutive fines will be imposed on the employer
if the employer fails to take corrective measures within the time limit.
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5. |
Article 32 of the Collective Agreement Act: Where an employer
or the workers violate Paragraph 1, Article 6 of the Collective Agreement Act, and
a decision has been made in accordance with the Settlement of Labor Disputes Act,
the violator will be imposed an administrative fine of NT$100,000 to NT$500,000.
Failure to take certain action or observe certain prohibition within the time limit
set in the decision will be imposed an administrative fine of NT$100,000 to NT$500,000,
and the competent authority may order the violator to take corrective measures within
a time limit. Consecutive fines will be imposed on the violator if the violator
fails to take corrective measures within the time limit.
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