The Draft of the Labor Dispute Act (the "Draft"), passed by the Judicial Yuan on March 26, 2018, was drafted for the purpose of facilitating effective resolutions of labor disputes, protecting laborers' rights in all dispute resolution proceedings, and ensuring symmetry of information and equal footing for both the labor and the management so that the parties may have a chance to resolve the dispute by mutual agreement.
Existing regulations related to labor disputes from different legislations (e.g., Code of Civil Procedure and Act for Settlement of Labor-Management Disputes) have been incorporated into the Draft to allow for easier application of the law, for example, when reducing or waiving the court fees or execution fees of any labor actions, claims, or petition of compulsory performance.
The Draft also sets forth new regulations regarding labor dispute and resolution. Among various new rules, the following could have the most impact:
I. Resolving labor disputes more effectively through the court-appointed mediation.
While the system of court-appointed mediation has been in place for many years, it has produced rather limited results. The Draft therefore strives to improve the effectiveness of court-appointed mediation via the following means:
(1) The Draft stipulates that one judge and two court-appointed mediators will form the mediation committee that presides over the mediation process, while current mediation proceedings are led by only one court-appointed mediator without any actual involvement of a judge.
(2) A mediation committee shall hold the first mediation session within 40 days after a mediation request was filed and the mediation process shall be concluded by the third mediation session. In principle, parties to the mediation shall submit relevant evidence by the second mediation session to serve as the basis for the mediation committee to propose any settlement plans or to conclude the mediation without a resolution.
(3) If the mediation yields no resolution and subsequent action is initiated, the judge participating in the mediation process shall preside over the subsequent court proceedings. During the mediation process, mediators will inform the parties of the possible results of bringing a suit, and since such information comes from a judge who will be presiding over such suit, the parties would naturally give it a more careful consideration when deciding whether or not to accept the settlement plans proposed by the mediation committee and to avoid bringing actions.
II. Court Proceedings for Labor Disputes
If a suit regarding labor dispute has been initiated after a failed mediation process, the court proceeding, in general, shall be concluded after only one session of oral argument because the judge presiding over the suit has participated in the mediation process and is familiar with the facts and evidence of the dispute. However, if the judge believes that the complexity of the disputes warrants further investigation, one or more hearings may be held before commencing on the oral argument.
III. Provisional Dispositions
A dismissed employee may initiate a suit to confirm the existence of employment relationship and to claim illegal dismissal. If the court believes that it is possible for the employee to receive a favorable ruling in the suit and that there is no material difficulty for the employer to continue employing the employee, the court may enter into a provisional decision to order the employer to continue employing and paying wages to the employee. This way, the employee may be reinstated and continue to work and receive wages before a final ruling is made.
IV. Adjustment of Burden of Proof
(1) With respect to the issue of whether certain payments received by an employee should constitute a part of the wages (particularly when calculating pension or severance payment), if the employee can prove that the payment is provided by the employer to the employee based on their employment relationship, such payment shall be deemed wages given for the employee's performance of work; if the employer believes that certain payment does not constitute a part of the wages (e.g., year-end bonus or discretionary performance bonus), the employer shall bear the burden of proof.
(2) The work hours documented by an employee's attendance record shall be deemed the hours that such employee have worked under the approval of the employer, and thus may be used as the basis for calculating overtime pay. If the employer believes that the work hours documented by the attendance record did not reflect the employee's actual hours of work, the employer shall bear the burden of prove otherwise.
The Draft Bill of the Labor Dispute Act will soon be sent to the Legislative Yuan for further review; no major adjustment to the Draft is expected to be made at the Legislative Yuan. As the government is planning to complete the legislative process of the Labor Dispute Act within the coming 2 years, proper response measures shall be implemented employers and all parties involved accordingly.