Please use this identifier to cite or link to this item: https://ah.nccu.edu.tw/handle/140.119/124425


Title: 國道收費員適用勞基法之爭議問題-兼論我國行政機關約聘僱人員與勞基法適用之問題
Controversies over the Applicability of the Labor Standards Act to Freeway Toll Collectors: Also on Contract Employees in Taiwan's Administrative Agencies and Their Eligibility for the Application of the Labor Standards Act
Authors: 吳姿慧
Wu, Tzu-Hui
Contributors: 法學評論
Keywords: 勞基法適用範圍;約僱人員;臨時人員;行政契約;定期契約;特定性契約;繼續性工作;以預算原因聘僱之人力;企業經營風險;庶務性之工作
Scope of Applicability of the Labor Standards Act;Contract Employees;Temporary Workers;Administrative Contracts;Fixed-Term Contracts;Specific Contracts;Continuous Work;Workers Hired for Budget Reasons;Corporate Management Risks;Work of General Affairs
Date: 2017-06
Issue Date: 2019-07-24 15:59:42 (UTC+8)
Abstract: 國道收費員因收費站遭裁撤,與交通部高公局爆發勞資爭議而備受社會矚目,案件爭點恰為我國公務機關約聘僱人員常見爭議之縮影:其一,約聘僱人員因適用法源不同,而有適用與不適用勞基法兩種類型。依僱用辦法聘用之人員,因銓敘機關認為聘用人員為行政契約關係非屬勞基法之勞工,勞動部迄今未將之納入勞基法之適用,然民國一○四年最高行政法院對高公局與收費員間之爭議,認定為僱傭之私法關係而不予受理;其二,約聘僱人員適用勞基法者,常見執行具有繼續性之工作且一再續約,最高法院以其非公務機關之常備人力或經費係法定預算所為之支出,係屬可在特定期間完成之非繼續性工作,承認其長年續約之合法性。此種對公私部門採取不同之審查密度,是否透過司法判決開放公部門定期契約之門?恐受質疑。
Due the recent abolition of toll booths, labor disputes between freeway toll collectors and the Taiwan Area National Freeway Bureau have occurred, drawing intense social attention. The point of dispute in this case epitomizes the common disputes over contract employees in Taiwan's administrative agencies. First of all, since the laws applicable to contract employees differ, contract employees are divided into two groups: those who are protected by the Labor Standards Act (hereafter referred to as the Act) and those who are not. Employees hired in accordance with the contracted-employment regulations are regarded by the Ministry of Civil Service as employees in administrative contracts with the government. Consequently, the Ministry of Labor has not rendered the Act applicable to these employees. However, having considered the dispute between the National Freeway Bureau and freeway toll collectors, the Supreme Administrative Court ruled that the two parties were in a relationship of private employment, and rejected the appeal accordingly. In addition, contract employees to whom the Act is applicable are seen performing continuous duties and renewing contracts repeatedly. The Supreme Court recognized the employees' legality of long-term contract renewal because they are regarded as standing workers outside public offices or workers hired using statutory budgets who perform non-continuous work within specific periods. The incongruous rigor of judicial review adopted for public and private sectors and the resultant judicial decisions risk opening a gate for fixedterm contracts in public sectors.
Relation: 法學評論, 149, 85-137
Data Type: article
DOI 連結: https://doi.org/ 10.3966/102398202017060149002
Appears in Collections:[法學評論 TSSCI] 期刊論文

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