我國工時保護制度之研究─以正常工作時間外勞動為核心

Abstract

觀察近年來勞基法之修正，縮短工作時間儼然成為勞動條件中較為引人關注的趨勢及議題。不過即便如此，面對企業經營之實際需要，正常工作時間之原則亦設有例外規定。然而在我國，基於正常工作時間外勞動而導致自願加班的發生、例假制度之落實方式以及勞工過長時間處於勞動狀態等現象，並沒有因為勞基法之修正而有所改善。本文將正常工作時間外勞動之具體內涵分為兩大層面，第一個層面包含「正常工作時間之延長」及「休息日勞動」，第二個層面則是包含「例假日勞動」及「休假日勞動」，這兩個層面因勞基法之影響而會有不同情況之發生，而本文旨趣是在探討基於我國勞基法在法定要件上的規範，對於正常工作時間外勞動之情形所帶來的影響及因其造成的問題。\n透過文獻分析法以及比較法之輔助，研究分析後發現，雖然勞工於正常工作時間外勞動並非原則，但卻是常態，其原因有三：第一，正常工作時間外勞動之事由，在我國法規範上係以雇主之必要性為要件，然而因解釋空間不太明確而飽受質疑；第二，正常工作時間外勞動之程序以勞工團體之同意為機制，但在效力上不一定會對個別勞工有所拘束力，因此應檢討其是否仍對雇主較為有利。第三，同時也是應盡速檢討改進之問題，目前我國勞基法對休息日工作之要件尚且模糊不清。另外，因容許例假日及休假日之挪移，而致其很多面向的工作情況，乃勞資雙方及政府部門之徒增困擾。最後，司法機關對自願延長工作時間之情況並無一致之認定標準，以及工資加給標準不一而造成工作時間跨越逾二曆日之問題，乃為本文之研究發現之一。

As we view the revisal of the Labor Standard Act for the past few years, surely the issue of cutting down working time has become something that draws quite a few attentions. Even so, as confronting the actual need when it comes to operating a company, some exceptions are made besides the principles of regular working hours.However, while the Act has been revised, it seems like nothing has changed, people still work besides regular working hours, people still dispute about how to have their regular leave, and people still work overtime. In this article, the concept of working besides regular working hours has divided into two parts, which is a part that includes working besides regular hours and working on a rest day, and a part that includes working on a regular leave and working on a holiday. Due to the affection of the Act, these two parts will have different situation. The purpose of the article is to study the requirements base on the Act, and the affection and issue they cause.\nBy using document analysis, with the assistance of comparative law, after the analysis, it is found that even though it shouldn’t be normal to work besides regular working hours, it is quite common for three reasons. First of all, the Act set the employer’s necessity as a reason, but the definition of necessity is questionable. Secondary, the Act makes a consent made by the labor union or a lobor-management conference as the approval of extending working hours, however, it may not occur restriction for individual labor, which may be favorable for employers. The third reason, which should be review and make improvement as soon as possible, is that there is no cleary specification for the requirement of working on a rest day. In addition, since it is possible to adjust regular leave or holiday, it opens up many disturbing situaions. Finally, it is found that when dealing with issues that contain extending working time by voluntary, the judicial authourities doesn’t have indentical views for the determination standard. Moreover, due to the calculation stardard which doesn’t indentical views for that as well, it causes issues of working exceed more than two calendar days.