勞基法第84-1條「勞雇」另行約定工作時間之檢討

Abstract

民國 85 年間為擴大勞動基準法之適用範圍，為使勞基法可適 用於更多的行業及工作者乃增定第 84-1 條，使工作性質特殊 之勞工於納入勞基法適用範圍之際，排除工時相關規定之限 制。保全服務業之保全人員依 87 年勞委會之核定公告成為適 用勞基法第 84-1 條之工作者，工作時間由勞雇另行約定，不 受勞基法相關規定之限制。然因保全人員長期超時工作引發 諸多爭議與疑慮，勞委會遂於 99 年 12 月 17 日修正「職業促 發腦血管及心臟疾病(外傷導致者除外)之認定參考指引」， 並於 100 年 5 月訂定「保全業之保全人員工作時間審核參考 指引」，各地方政府援此指引訂定核備勞基法第 84-1 條約定 書之審查基準。在我國目前欠缺成熟集體機制作為勞動條件 協商之現實下，勞委會前述所訂之審核參考指引，以及各地 方政府之審查基準，成為勞雇約定書之重要依據，故其意義 甚大。本文乃以勞委會所訂之審核參考指引及地方主管機關 之審查基準，對保全業關於工作時間之約定產生之影響為探 討對象，研究結果認為：第一、保全業排除勞基法工時之規 定，透過行政主管基機關之審查基準，工時約定之實況又大 致回到勞基法工時規範之框架，第 84-1 條除外適用之意義， 有重新思考之必要。第二、中央主管機關之審核參考指引做 為概略性之指導原則，應不涉及勞動條件之統一規定，地方 主管機關之審查基準則需因地制宜，個案認定勞雇約定合理 於否，兩者定位應明確劃分，不宜重混淆。第三、勞基法第 84-1 條所稱之勞雇另行約定不應侷限個別勞工所定之勞動契 約。目前實務上排除集體協商所訂之團體協約之解釋，甚為 不妥。第四、地方主管機關之審查，已相當程度決定勞雇之 工時勞動條件，故其核備應解釋為生效要件。第五、勞雇之 約定書應有延長工時加班費之記載，且應注意兩點原則：1. 不應使正常工時與延長工時之界線模糊。2. 加班費應以平時 約定之薪資計算。

The review about the otherwise agreement from the "employer and employee" of Act 84-1 LSL Article 84-1 of the Labor Standards Law in the Republic of China on December 85 update purposes, the legislature intended to exclude workers in the Labor Standards Law for specific legal working time restrictions, changing the employee and employer otherwise agreed by the working time flexibility in working time, however, for this year (2010) January successive technology industry engineers worked to death suspected fatigue, leaving the responsibility for this work commonly known as the preparation of the spotlight, the main controversy lies in the enterprise caused by "misuse" of responsibility for working hours. Companies often mistakenly think that as long as work time and labor otherwise agreed, you can effectively exclude working time on the Labor Standards Law shall apply to the two sides agreed time and therefore exempt from overtime pay, including workers from the reaction of the public view, are such misunderstanding. In other words, the community generally do not know the Labor Standards Act referred to in article 84-1 of the "responsibility system of work" a trade restrictions and duties do not have freedom to choose working hours that may directly responsible exclude the application of the Labor Standards Law. Based on this, from an academic point of view, the Labor Standards Law Article 84-1 of "employers and employees," the two sides have agreed working hours be subject, in addition to individual workers, the possibility of trade unions or other groups with the collective nature of the subject as agreed , is into focus, as then the problem started in November the same year with the Council of Labor Affairs of the labor inspection results were found the highest percentage of violations of the Labor Standards Law were to "extend the working hours exceed the laws and regulations", increasingly highlight the work of employer and employee agree otherwise time is very important subject, because the employer and employee agree otherwise working hours, which means hours on the working conditions of the most important basis from the provisions of the Labor Standards Law is binding minimum, replaced by the two sides to agree, the result will depend on the two sides agreed "negotiations power "may be, as a collective force without the backing of the agreement and a separate agreement of the working hours, including rest and extend working hours, fear of the need of flexibility for business operations be reduced to the employer the results of unilateral or dominant form, which is presented the phenomenon of the so-called sovereignty of the employer`s working hours (Zeitsouveränität), so the Labor Standards Act from the legislative intent of Article 84-1, both types of differences in response to the operating companies or the special nature of duties and flexible working hours or working time to be deformed However, the protection of labor must also work in the elastic deformation of the system or to maintain the basic health protection, working hours exclude the application of mandatory provisions of the Labor Standards Law, in addition to restrictions by the competent authority for announcement to the industry and office workers in particular for the application objects, according to the Labor Standards Law Article 84-1 of the main employer and employee agree otherwise how to identify and separate the contents of the agreed working hours to review and to avoid affecting the health of the labor welfare only are all the first 84-1 Labor Standards Act whether a practical system for the purpose of Article key points. According to the present practice of views on the Labor Standards Law Article 84-1 of the main working time be agreed upon by the individual workers are basically mining agreement with the employer, does not apply to collective participation that whenever the Labour conference, or trade unions, the CLA letter to explain or judgments of the Court, is that according to the Labor Standards Law Article 84-1 refer to the local competent authority of the written agreement, should the agreement between employers and individual workers. The reasons are largely mechanized, one, the Labor Standards Law Article 84-1 of legal protection of labor rights for the intention of implementing the mandatory provisions of this section shall not be not provided since the "agreement of the union" instead of employer and employee agree, II, Article 84-1 matters specifically agreed upon to be both employers and employees work for the Special Agreement and the other independent nuclear preparedness program practice, non-group contract of about money matters, III, in accordance with Section 84-1 provides separate agreement, the Till the dawn over the legal basis, the labor significant impact on per student interests, it is prepared by the competent authorities of the nuclear "and a particular set of individual employers and employees not allowed between the effect of statutory labor standards of the law", in other words, according to the aforementioned practice of the opinion that once the industry or job specific labor Zheyi Article 84-1 Base Act otherwise agreed working hours of workers only by the individual to agree or refuse, without otherwise agreed by the trade unions and employers working hours of the room. Some explanation of this point of view from the bottom is not no doubt: First, the normal working hours, extended work hours and other work issues or deformation, are collective agreement may agree that matters. Our Collective Agreement Act in accordance with Article 12 of the collective agreement may agree that the provisions of matters, including "wages, hours, allowances, bonuses, transfer, severance, retirement, occupational accident compensation, pension and other working conditions", in which working hours and wages individual labor contract agreed upon the important matters of collective bargaining also consult the main points of confrontation by the Alliance (Koalition) the process of collective bargaining, wages and working hours to establish the basic framework, according to the direct effect of collective agreements, collective agreements directly applicable in the relations between people (employers and workers) to ensure that the wages and working hours of labor to meet their economic interests and to avoid physical load beyond the level of maintenance workers of the rights and interests. Thus, when according to the Labor Standards Law Article 84-1 of the workers approved notice, otherwise agreed with the employer of the working time, not just simply be for a given configuration of the scope of work, but re-form the scope and length of working hours, due to total working hours of wage consideration, since the scope of work is a labor contract established when the point is also a Collective Form of focus, as a collective agreement may agree that the content should be doubt. Second, to avoid endangering the health welfare workers need to control only the means. Article from 84-1, "agreed the preceding paragraph shall be in writing and shall be determined by reference to the basis of this Act and shall not prejudice the health and well being of workers" we know the requirements, even if employer and employee work hours can be agreed upon, then the agreement is not There is no limit, should refer to the benchmarks set by the Labor Standards Law, and shall not prejudice the health and well being of workers. Employer and employee agree otherwise in order to avoid the loss of working time and labor of the health and well-being, this section also provides that the working hours be agreed shall be submitted to the local competent authority, the Council of Labor Affairs by 87 July 20 (87) units of labor b No. No. 029 942 word letter explained that the business units and labor determined by the written agreement submitted to the local competent authority, the local authority, pursuant to Paragraph 2 provides that review, "if the audit of its contents are not easily identified contract whether the loss of health and welfare and labor, could submit relevant information and intends to provide its opinions NSC Ping Office "shows that this legislation the occasion of excessive working hours in order to avoid endangering the health workers Fu Di, divided by the notice approved Shiyong specific duties in the industry and outside workers, and re-submitted to the competent authority, after, and whether the loss of their contents and health well-being of real review. Indeed, in order to avoid labor due to economic factors and actively cooperate with the employer demand for flexible working hours, beyond the physical load of the agreed working hours, or labor in order to avoid dismissal because of concerns about the employer had to agree to unreasonable work conditions, "submitted to the local competent nuclear equipment "issued to a certain extent deter improper or excessive working hours with the agreement, however, the process of business operation needs of the situation is indeed what can be adjusted to what extent, workers bear the status of physical health, psychological general reaction, rather than by the Chief authority for review after the nuclear scope is exceeded under adverse health outcomes, better understand the business operations by the most state of the union controlled by the trade unions and employers into direct negotiations with trade union alliance on the one hand against the nature of the work scope of the formation of joint consultation, On the other hand because of the special nature of trade union field plants, but also work together to determine the most close to the time needed for the factory configuration state, and the consultations made by the collective strength, to avoid the consent of individual workers, but active support for the economic factors excessive harm health, or fear of being dismissed and passive acceptance inappropriate working hours. Third, the provisions of fixing terms, whichever form of harm its meaning. Interpretation from the executive point of view, the first 84-1 for the separate labor contract shall be limited working hours of the main, the main reason for this is "otherwise in accordance with Section 84-1 provides that agreement, the Till the dawn over the legal basis, each student in a major labor rights impact "so by the competent authority of nuclear equipment" and a particular set of individual employers and employees not allowed between the effect of statutory labor standards of the law ", and thus make a" non-promise individual is willing to do the labor of the Ming and Wu De recognize the trial, "the conclusion . As otherwise agreed to consider working hours, often exceed the statutory basis of a major labor rights, more detailed studies of individual workers should be referred to the working time the employer promised, whether fairly or the negotiation of such power, only emphasizes the labor should be clearly agreed, do not think agree whether the true meaning of the contents of workers and trade unions denied this ground as the main contract, seems to be upside down, whichever form of the risk of harm of its meaning can be described as unworthy. Labor Standards as a statutory rule out this limitation of working hours, except the provisions of legislative intent or responsibility that is to monitor the workers and other attributes of the special nature of their work, their working hours for special needs, there is a need to eliminate restrictions Labor Standards Act in that case, even if the same responsibility to monitor or sectors or workers, there may still be differences between the individual labor contract with the employer further after working hours reported to the competent authority for approval, the competent authority whether the observed differences in the meantime, make close to the two required audit, Kongfei completely Undoubtedly, this practice even to the competent authorities of the effectiveness of nuclear equipment to explain the decision as reference, such as that according to the interpretation of Council of Labor Affairs of the nuclear preparation by the competent authority may be students "and have special Do not allow employers and employees on individual basis of the statutory labor law effect ", might not be period. From another perspective, as otherwise agreed, after consultation with trade unions worry about the working hours harmful to labor rights and benefits in accordance with the principle of Collective Agreements (Günstigkeitsprinzip), the parties may agree that still more favorable conditions for collective agreements, from the Collective Agreement Act of article 19 of the "Labor contract is different from the collective agreement of the working conditions of the agreement, its different part of the void; invalid part of the collective agreement of the contract instead. but different from the collective agreement the agreement, the collective agreement or allowed by the benefit changes for workers working conditions, while not prohibited by the collective agreement, still valid, "the provision, or may stop this worry Du. However, if the working hours may be agreed upon by the union, according to Article 10 of Collective Agreement Act regulations, collective agreements signed, the employee collective agreement the parties should be sent to the competent authority, then the Labor Standards Law in accordance with the provisions of Article 84-1 , and the other in writing the agreed hours of work shall be submitted to the local competent authority, according to letters released aforementioned shows, the preparation of the nuclear non-approved only for reference and a review of the meaning, then a paragraph about the content of collective bargaining by the executive authorities and then the content of the audit, and whether contrary to the spirit of self-government negotiations must be thinking. This study focuses on the above, especially the main employer and employee agree otherwise discussed whether only individual workers; such as whom by the union, it must be agreed upon after the formal breach of the effectiveness of the audit and how is this research a research priority.