The Necessity of Establishing a Labor Court in Taiwan from the Perspective of Labor Disputes - Mobilizing the Public for Judicial Reform "Public Voice Series"

Labor disputes are an inevitable product of an industrial society. Approaching the subject from the perspective of a social work student regarding the general distress faced by Taiwanese laborers when dealing with judicial litigation, this article discusses the deficiencies in Taiwan's current labor dispute resolution procedures (including judicial procedures) and emphasizes the necessity and urgency of establishing a labor court.

Compared to traditional civil law, labor law is a specialized field that has made major revisions to many legal principles of civil law. However, individuals seeking the realization of substantive legal fairness and justice through the courts must follow certain litigation procedures. Given that substantive labor law is already an independent legal domain, is an independent procedural labor law also necessary to realize the fairness and justice of substantive law? This article introduces foreign systems (Germany and France), examines whether maintaining Taiwan's general civil litigation system meets the practical needs of Taiwanese laborers, and uses specific foreign examples—such as litigation speed and procedures—as a reference for domestic legislative amendments.

Keywords: Worker, Labor Standards Act, Labor Court, Labor Dispute.

Introduction

Taiwan's economic development has long received high international praise. Despite lacking natural resources and capital superior to other economically developed countries, Taiwan managed to rank among the "Four Asian Tigers" within a mere decade. In terms of various economic indicators, such as foreign exchange reserves ranking among the world's top, per capita national income exceeding 12,000 USD, and the popularization of education, Taiwan has reached the standards of an "advanced nation," which is truly remarkable!

Will Taiwan's economic miracle turn out to be a myth of the so-called "bubble economy"? And given its disadvantageous position in international political realities, how can Taiwan break through its economic development bottlenecks? This has long been a subject of intense discussion among domestic and foreign scholars. Therefore, in response to these various circumstances, the main axes of economic development, industrial upgrading, the "go south" and "go west" policies, and the Asia-Pacific Regional Operations Center have also been widely watched and discussed.

Regardless of how political elites make their ultimate decisions, those most deeply affected are none other than the workers who constitute the vast majority of the employed population. During Taiwan's capital accumulation process, labor-intensive practices, low wages, and workers' high education levels and high cooperation have always been the greatest factors in creating the economic miracle and accumulating wealth. For a long time, the labor force—much like other factors of production such as machinery, raw materials, and land—was viewed merely as a business operating cost, completely ignoring its "personality." With the sudden changes in the domestic political ecology and under international public opinion pressure, the government promulgated the Labor Standards Act in 1984. Furthermore, following the lifting of martial law, with the backlash of civil forces, the labor movement gradually flourished, and labor consciousness rose. The long-term exploitation of workers by business owners finally met with the greatest backlash, and workers began to demand more reasonable profit distribution and working conditions, ultimately triggering various labor disputes. (Kuo Ling-hui, 1996)

Labor disputes are an inevitable product of an industrial society, and countries around the world have relevant legislation. Through government intervention, industrial conflicts are institutionalized with the hope of protecting both labor and management, promoting labor-management harmony, and thereby benefiting overall national growth. Looking at Taiwan's current labor regulations, they indeed have the positive meaning of protecting workers in intent, but in institutional design and implementation sincerity, they cannot help but make the labor class feel deeply helpless!

Therefore, based on the current status of labor disputes in Taiwan, this article will discuss the concepts within the current Labor Dispute Resolution Act and address its deficiencies, thereby emphasizing the importance of thoroughly implementing the spirit of a labor court in labor dispute resolution procedures.

Basic Concepts of Labor Dispute Legislation

In a broad sense, labor disputes refer to all disputes arising centered around labor relations. These include disputes arising from the labor contract relationship between employers and workers; disputes arising between employers and the state regarding labor protection and labor insurance regulations; disputes arising from mutual relations between employer groups or labor groups; and disputes arising from collective bargaining between employers or employer groups and labor groups. However, in a strict sense, they are limited to disputes arising from labor relations between individual workers and employers, and disputes occurring between employers or employer groups and labor groups. (Note 1) Labor disputes referred to in labor legislation generally mean labor disputes in the strict sense, so the handling targets of the labor dispute resolution system are also limited to labor disputes in the strict sense.

Labor disputes can be classified into the following categories according to the nature of their dispute content and the number of people involved in the dispute:

Rights Disputes and Adjustment Disputes

Divided by the nature of their dispute content, labor disputes can be classified into rights disputes and adjustment disputes, defined as follows:

So-called rights disputes refer to disputes over rights and obligations arising from parties to a labor dispute based on the provisions of laws and regulations, collective agreements, or labor agreements (Article 4 of the Labor Dispute Resolution Act)—that is, conflicts caused by the execution, interpretation, and infringement of existing rights. The acquisition of such rights comes from statutory provisions or agreements in collective agreements and private contracts. In terms of handling methods, it falls within the scope of the judiciary. Therefore, it is more appropriate for judicial organs to use judicial means to resolve disputes in accordance with trial procedures and based on existing laws and regulations. Such labor disputes are also called disputes in law or simply disputes on rights.

So-called adjustment disputes refer to disputes in which parties to a labor dispute claim to continue maintaining or modifying working conditions (Article 4 of the Labor Dispute Resolution Act)—that is, disputes caused by claiming whether existing rights should be modified in the future based on factual conditions. In other words, the cause of this type of conflict is not a dispute over existing rights, but a conflict of economic interests between both parties. The problem they seek to resolve requires an understanding of economic and social conditions to determine whether such existing rights and interests should be modified. From the perspective of handling, it falls within the scope of administration. Therefore, it is more reasonable to use compulsory means to resolve them through organs of the administrative system or to mediate through conciliation. Such disputes are also called disputes in fact or disputes on interest.

Individual Disputes and Collective Disputes

Divided by the number of people involved in the dispute, labor disputes can be classified into individual disputes and collective disputes, described as follows:

So-called individual disputes refer to conflicts occurring between a worker and an employer due to individual labor relations. The disputing parties are individual workers and individual employers rather than labor groups or employer groups. In other words, individual disputes arise from individual workers whose existing rights are infringed upon or ignored. The subject of the dispute is an individual worker, and the object of the dispute is a private law right. Therefore, labor disputes are usually dominated by rights disputes; adjustment disputes are in principle not initiated by individual workers. Consequently, individual disputes are adjudicated by judicial organs according to contractual legal principles rather than adjudicated by labor dispute resolution organs of the administrative system.

So-called collective disputes refer to conflicts arising between labor groups and employers or employer groups regarding whether existing rights such as working conditions of affiliated workers should be modified or conflicts arising between them. The labor side of the disputing parties must be a labor group (a union or a majority of organized workers), using collective bargaining as a means. Therefore, collective disputes are usually dominated by adjustment disputes and are adjudicated by labor dispute resolution organs of the administrative system.

Combining the above two sets of classification concepts can form four types of labor disputes: 1. Individual rights disputes; 2. Collective rights disputes; 3. Individual adjustment disputes; and 4. Collective adjustment disputes. Individual labor disputes usually take rights matters as their dispute content, while collective labor disputes usually take adjustment matters as their dispute content. Therefore, labor disputes handled by judicial organs are predominantly individual rights disputes, while labor disputes handled by administrative organs are predominantly collective adjustment matters.

Judicial Processing Procedures for Labor Disputes

Article 5 of the current Labor Dispute Resolution Act stipulates: "Labor disputes concerning matters of rights shall be handled in accordance with the conciliation procedures prescribed by this Act; if necessary, the court shall establish a labor court to handle labor disputes." However, there are two types of judicial resolution methods adopted by various countries: one is to follow civil litigation procedures and resolve them through ordinary courts, where trial procedures are identical to those of ordinary private law appeal cases; the other is to establish special courts for handling (Cheng Sheng-long, 1989). The reasons for countries establishing special courts and implementing special litigation procedures to try rights disputes in labor disputes can be summarized as follows:

Most workers have low incomes and very few savings. If they file a lawsuit in accordance with the Code of Civil Procedure, they simply cannot afford various expenses. Therefore, when a labor dispute occurs, even though the fact that the employee suffers exploitation is obvious, they are unwilling to file a lawsuit and, in fact, lack the capability to do so.

The amount of money involved in labor rights disputes is often limited. Even if workers have a full assurance of winning, because the rights and interests obtained after winning may still not cover stamp fees, attorney fees, and other expenses, weighing the two, they would rather endure it than file a lawsuit.

Ordinary court litigation procedures are complex and cumbersome, and a case often drags on for months or even years. If labor disputes, especially regarding claims for remuneration and the right of appeal against unlawful dismissal, cannot be resolved quickly within a short time, they often lose the meaning for which they are disputed. Therefore, it is necessary to establish special courts to handle them separately.

Labor disputes mostly belong to specialized natures; without the participation of experts who have specialized research on labor problems, proper and fair judgments cannot be obtained. Ordinary courts clearly have this shortcoming.

Overview of Labor Courts in Various Countries

The establishment of labor courts is intended to handle rights disputes (disputes in law). According to historical statistics from administrative agencies, rights-based labor disputes account for over ninety percent of labor disputes in Taiwan (Note 2). Therefore, the establishment of labor courts appears extremely important when handling labor disputes.

The labor court is a progressive system that has already been adopted by many countries around the world, such as France (1848), West Germany (1926), Italy, Sweden (1974), Finland (1974), New Zealand, Chile (1931), and the United Kingdom (1919), most of which have been operating for many years and playing their due functions.

However, the author believes that among these countries, France and Germany have the most complete institutional designs, and thus they are cited as a reference for future domestic legal amendments.

France

The French labor dispute resolution system has the longest history, and the origin of labor courts is generally considered to have begun with the labor council established in the city of Lyon in 1806. At that time, this was a major European textile center; due to the gathering of workers and frequent disputes that general local courts could not handle, the system of summary labor courts was established (Note 3). It was not until 1848 that the first labor court was formally established in France.

The following is an introduction to the French labor court:

Court Organization, Judges, and Secretarial Personnel

Regarding the organization of labor courts, they are all institutions established locally in counties and cities. They are roughly divided into four trial divisions: the industrial division, commercial division, agricultural division, and other occupational divisions. Among them, the industrial division is relatively important, handling the most cases with detailed division of labor. Taking the Paris Labor Court as an example, it is divided into chemical industry groups, textile industry groups, construction engineering groups, etc. (Note 4)

As for court judges and secretarial personnel, judges of the labor court are appointed in equal numbers by county and municipal governments from qualified persons elected by both labor and management. Their term of office is five years, and any French citizen aged twenty or older with no criminal record is eligible for election. Half of the judges are re-appointed every three years, and all judges serve on a part-time basis. Their remuneration is determined by the Ministry of Labor and borne by county and municipal governments. However, during their term of office, they can still engage in their own business; therefore, the law protects their status and functions and prevents them from being interfered with, usually granting certain guarantees—for example, if they cannot work due to the performance of duties, the employer must continue to pay wages, but the state will compensate the employer.

In addition, permanent secretaries are appointed to provide opinions with their professional knowledge for the presiding judge to consider and adopt, which contributes significantly to the performance of the labor court.

Trial Procedures

According to the French Labor Code, only dispute cases arising from employment contracts between workers and employers or their agents can be filed for trial in the labor court. It is mainly limited to handling rights matters, and plaintiffs or defendants are limited to individuals. As for disputes between trade unions and management, they do not fall within the scope of labor court trials.

According to Article L515-1 of the Code, each division of the labor court shall establish a Board of Conciliation and a Board of Judgment.

Conciliation Board: Limited to matters that can be conciliated immediately. If conciliation fails, the case is transferred to the trial board for processing. The conciliation procedure is very rapid. Upon filing a lawsuit, registration is made with the court secretary in writing or through oral statements. Upon acceptance, the secretary determines the hearing date, and one judge elected by labor and one by management appear in court to conduct conciliation. If the plaintiff is absent at that time, the case shall be deemed withdrawn.

Judgment Board: The judgment board is jointly heard by two judges elected by labor and two elected by management, assisted by a full-time secretary who provides opinions based on professional knowledge. When the judgment board holds a hearing, if the plaintiff is absent, the case is deemed withdrawn; if the defendant is absent, a default judgment is rendered, and the defendant may not jointly deliberate. However, if the defendant is truly unable to appear in court due to matters, they shall report to the labor court in advance.

To thoroughly investigate the causes of the dispute and solutions, the judgment board may appoint one or two judges to act as "investigating judges" responsible for investigating the plaintiff and defendant. During the investigation period, they may also promote a settlement between the two parties at any time; if a settlement cannot be reached, they report the investigation results to the judgment board as the basis for the judgment.

Appeals: Parties dissatisfied with the judgment of the labor court may appeal to the High Court, and those dissatisfied with the High Court's judgment may appeal to the Supreme Court. The Supreme Court reviews judgments solely based on written documents. However, according to the regulations on labor court trial procedures promulgated by France on September 12, 1974, any dispute case where the penalty in the judgment is within 3,500 francs may not be appealed; those that can be appealed to the Supreme Court are limited to regulatory interpretations or technical disputes.

West Germany

Labor Court Organization

On December 23, 1926, Germany promulgated the Labor Courts Act (Arbeitsgerichtsgesetz). West Germany amended this act on September 3, 1953, into the currently effective Federal Labor Courts Act, dividing the organization of labor courts into an independent three-tier system: (1) local labor courts, (2) state labor courts, and (3) federal labor courts. According to the court levels of the labor courts, the local level is the court of first instance, the provincial level is the appellate court, and the federal court is the court of last resort.

Local Labor Courts (Arbeitsgericht)

Local labor courts are established in various major industrial zones in West Germany by the State Ministry of Labor with the consent of the State Ministry of Justice and state-level labor and management organizations. Local courts set up a certain number of professional judges and an equal number of non-professional local labor judges representing labor and management as needed. Professional judges shall possess the qualifications stipulated for federal judges; non-professional labor judges are selected by the State Ministry of Labor from lists submitted by labor and management, with a term of four years. General qualifications are being at least twenty-five years old and engaged in labor or employer work within the jurisdiction of the local labor court. Once appointed, non-professional labor judges enjoy the same legal protections regarding independent trial of labor cases as ordinary judges during their term of office.

Local labor courts usually try cases in collegiate panels, with a professional judge serving as the presiding judge and two non-professional labor judges as lay judges.

State Labor Courts (Landesarbeitsgericht)

The establishment of state labor courts is carried out by the State Ministry of Labor jointly with the State Ministry of Justice, after hearing the opinions of major trade unions and employer organizations within the state. According to the current West German Labor Courts Act, it is not limited to establishing one per state, but in practice, the general principle is one per state on average, with branch courts established when necessary. State labor courts have professional judges and non-professional judges. The qualification conditions for non-professional judges are limited to being at least thirty years old and having more than four years of trial experience in a labor court, which differs from non-professional judges of local labor courts.

Federal Labor Court (Bundesarbeitsgericht)

The federal government of West Germany established the Federal Labor Court, which consists of one president, presiding judges, professional associate judges, and a number of non-professional labor judges. The court is divided into several collegiate panels. A collegiate panel consists of five members in total: one presiding judge, two professional associate judges, and two non-professional labor judges representing labor and management respectively.

If there are major labor cases necessary for a uniform interpretation of laws and regulations, the Federal Labor Court may at any time form a grand collegiate panel for trial. The grand collegiate panel consists of the president of the Federal Labor Court, the most senior presiding judge, four professional judges, and two non-professional labor judges representing labor and management respectively.

Characteristics of Labor Court Trial Procedures

Regarding the trial procedures of labor courts, since the matters jurisdictionally handled by labor courts are mostly private rights dispute problems, provisions of the Code of Civil Procedure are applied mutatis mutandis in principle. However, because labor courts have their special functions, the procedures for labor courts to try labor cases still have special arrangements, forming the characteristics of West German labor courts:

Rapid Trial Speed

The trial speed of West German labor courts is prompt because the Federal Labor Courts Act and the Federal Courts Organization Act have the following provisions:

Courts at all levels shall try labor cases as quickly as possible.

Labor courts shall not apply court vacation regulations, meaning labor courts must conduct trials all year round.

The presiding judge of the labor court collegiate panel shall fully investigate facts and evidence prior to the trial date, and the opening of the trial session shall be based on a single session in principle.

Judgments shall be pronounced on the day the trial is concluded in principle, unless there are other reasons to schedule a trial, and the date for scheduled pronouncement shall not exceed three weeks.

Simplified Trial Procedures

The following provisions of the Federal Labor Court promote the simplification of trial procedures:

Service of court judgments shall be made by the court ex officio.

Rulings or dispositions that do not require oral argument shall be decided by the presiding judge of the collegiate panel without the need to deliberate together with associate labor judges.

Witnesses are only required to take an oath when making important statements affecting the judgment; general matters do not require an oath to achieve simplification.

The Federal Labor Court explicitly stipulates that the court of second instance may not remand a labor case for retrial due to procedural flaws in the court of first instance. (Note 5)

Direct Trial and Evidence Investigation

The presiding judge of the collegiate panel may, when necessary, require the parties to appear in person at any time. (Note 6) The presiding judge may also refuse the appointed agent of a party who fails to comply with personal appearance and render a default judgment on the grounds of failing to appear without justifiable reason.

In terms of evidence investigation, those that can be conducted at the court's location shall be investigated by the collegiate panel to obtain direct and accurate inner conviction.

Adoption of Leapfrog Appeal System

With the consent of both parties, or upon application approved by the local labor court, or subsequently permitted by ruling, parties may appeal directly to the court of third instance without going through the second instance against the judgment of the local labor court. The application for judgment shall be made within one month after the service of the judgment document.

Discussion on Taiwan's Current Labor Dispute Resolution System

As mentioned earlier, Taiwan's current labor processing is roughly similar in institutional design to other countries. For the handling of rights matters, after conciliation by administrative organs proves ineffective, it ultimately returns to judicial channels for processing.

However, although Article 5 of the Labor Dispute Resolution Act has established labor courts, there are no special litigation systems. Therefore, the following discusses Taiwan's labor court system and examines the basic issues that should be noted when establishing labor courts.

According to Article 2 of the Court Organization Act of Taiwan, courts are divided into three levels: local courts, high courts, and the supreme court. Labor courts are not independent of ordinary courts and thus fail to make the most appropriate division of labor according to the needs of workers.

Judges: Judges handling labor cases in Taiwan are all professional judges who also handle civil cases concurrently. Unlike family courts or financial courts which have family event handling measures and financial case handling measures setting up specialized courts and special litigation procedures (Liu Shih-hou, 1989), without dedicated personnel or specialized courts, judges often handle labor dispute cases using ordinary civil law trial procedures. Compared to Germany and France, which have professional and non-professional judges, there is still quite a long way to go. (Note 7)

Trial Procedures: Because Taiwan uniformly proceeds according to civil litigation procedures, it is extremely slow. Although summary litigation procedures are adopted as much as possible, due to the pressure of judges' performance evaluations, things often backfire, deviating from the judiciary's protection of workers.

Although Taiwan currently establishes labor courts in accordance with Article 5 of the Labor Dispute Resolution Act, constrained by the originally sparse establishment of court judges, it is fundamentally impossible to staff additional judges specifically for labor courts, which is worth further discussion.

The author believes that in order to achieve substantive justice, the spirit of establishing labor courts to protect labor rights should be immediately implemented at the current stage, followed by the gradual establishment of labor courts independent of ordinary courts and administrative courts, becoming an independent legal domain. Its advantage lies in breaking away from the establishment and sources of traditional trial personnel in ordinary courts and seeking participation from labor and management personnel (non-professional judges) to make up for the shortcomings of professional judges.

In terms of litigation procedures, the protection of the right to work differs from the protection of personal property rights. Although property is also related to people's survival, it usually does not urgently cause crises to a person's survival. But for workers, lacking capital to exchange for interest and having no land to obtain rent, the right to work appears even more important, and wages are a necessity for survival. Therefore, timely justice has great significance for labor litigation. The trial of labor cases should be expedited and simplified as much as possible. In addition, litigation costs and litigation aid should also be minimized and restrictions relaxed to enhance the labor class's willingness to seek judicial relief.

Conclusions and Recommendations

For workers who are economically disadvantaged, whenever a dispute event occurs, it will have a huge impact on their lives. The conciliation, arbitration, and evaluation procedures established by Taiwan's current labor dispute resolution are limited to handling adjustment disputes, while rights disputes are handled by judicial organs. This is indeed not improper, but both in the design and execution of peripheral systems, expected results cannot be achieved.

According to the author's observation, among various labor dispute events, those involving rights events account for the overwhelming majority. Therefore, to effectively handle such labor disputes, there are several active recommendations below to make the labor dispute resolution system more complete:

Regarding Administrative Organs

Actively elevate the status of ministries and departments in charge of labor affairs. Currently, Taiwan's Council of Labor Affairs in charge of labor affairs is clearly an extremely weak ministry compared to the Ministry of Economic Affairs and the Council for Economic Planning and Development which represent business interests. In contrast, West Germany and France both use a Ministry of Labor, playing a more active role in labor disputes and labor policies.

Personnel handling labor dispute events in administrative organs mostly enter public institutions through national examinations and thus cannot fully grasp labor affairs. Therefore, when recruiting personnel into labor administration organs, it is necessary to conduct special testing on the professional knowledge they handle before they can be hired.

In institutional design, due to overemphasizing the distinction between the administrative department and the judicial department, administrative organs lack binding force when handling rights-based labor disputes, thereby failing to achieve results. The author believes that...

Regarding Judicial Organs

Immediately implement the spirit of the Labor Dispute Resolution Act regarding the establishment of labor courts to handle labor disputes, set goals, and continue moving toward the ideal of establishing labor courts so that labor litigation is independent of ordinary courts and becomes an independent litigation entity.

Strengthen training in labor regulations during the professional development processes of judges and lawyers, such as requiring proof of studying labor-related regulations upon acquiring qualifications.

Others

Comprehensively revise all labor regulations to strengthen the ability and spirit of labor and management to handle disputes themselves. For example, strengthen trade union organizations to promote the parity of labor and management status, thereby cultivating the ability to handle problems between each other independently.

Actively use legislative means to promote the formation of a labor-management community of life, such as West Germany's legislation in labor regulations coordinated with other regulations, e.g., the Works Constitution Act, practicing the spirit of industrial democracy to achieve harmonious labor relations.

I think "timely justice" is very important for a worker, but looking at Taiwan's current labor regulations, protection for workers is already insufficient. To protect themselves, workers fail to make full assertions of the rights they should autonomously have.

However, when a labor dispute occurs, workers can only silently accept the facts. Aside from following statutory procedures to assert rights, they only pray not to enter judicial procedures as much as possible. Once entering judicial procedures, workers must prepare to fight for N years. Therefore, this article strongly advocates that labor courts should be established as soon as possible to implement the spirit of labor substantive law.

Notes

See Shih Shang-kuan, "General Principles of Labor Law", p. 241

As mentioned earlier, rights matters are rights clearly defined by law (statutory rights), so they logically should not constitute dispute events. However, domestic labor dispute events are predominantly rights matters, which is the result of employers universally disobeying the law, truly a great irony.

See Liu Shih-hou, "Research on Labor Litigation Procedures", Constitutional Review, Vol. 17, No. 2

See Cheng Sheng-long, "The Necessity of Establishing Labor Courts in Labor Dispute Resolution from a Jurisprudential Perspective", Chinese Comparative Law Society

To protect the trial-tier interests of parties, if a court of first instance has procedural flaws, a West German court of second instance usually may remand the case to the court of first instance for retrial.

West German civil litigation adopts the principle of compulsory attorney representation in general, but the trial of labor cases does not adopt compulsory attorney representation, though appointed agents may still be entrusted to appear in court for litigation.

Whether professional and non-professional judges are established has a tremendous impact on handling labor dispute cases; foreign examples prove that establishing specialized courts and dedicated personnel to handle labor dispute cases has positive effects. Establishing professional and non-professional judges can make up for each other's theoretical and practical deficiencies. Appropriately endowing administrative organs with so-called "quasi-judicial powers" makes them more binding during the handling process.