The draft of Taiwan's new Labour Dispute Act (the "LDA") was approved by the Judicial Yuan on 26 March 2018. The dispute resolution process under the new LDA will be open to those employed by Taiwanese employers in respect of certain types of claims. The LDA is intended to protect the rights of labourers and to facilitate the resolution of disputes between employees and employers in an expedient way. To achieve this, the LDA provides for the convergence of various existing statues, alongside a series of new changes, which the Government hopes to finalise in the next two years.
A streamlined procedure
The new procedures under the LDA will be available to all employees of Taiwan employers. The LDA does however limit the type of disputes that may be adjudicated under this new process.
The LDA provides also for some key changes to the manner in which mediation is run so that:
- a Labour Mediation Committee ("LMC") (comprised of three members appointed by the Court, one judge and two mediators) must hold the first mediation within 40 days of receiving the mediation request; and
- the mediation process shall be capped at no more than three mediation sessions.
In the event that the LMC is unable to reach a resolution and litigation is initiated, the judge who participated in the mediations will preside over the subsequent proceedings. During mediation sessions the LMC is also encouraged to make clear to the parties the potential results of litigating their dispute. Given that one of the committee members giving this advice is the judge who will subsequently preside over the dispute; it is thought that parties will be more minded to take heed of such advice.
The LDA also allows employees to file civil suits against their employers within the jurisdiction where they have their work site or service area. Moreover, the LDA imposes an obligation upon judges to inform employees that they have the right to request a preliminary injunction against their employers for continued payment of wages. In order to succeed in such an application the employee will be required to show that they would have difficulty maintaining their livelihood for the duration of the litigation process.
Under the LDA, reinstatement is now an available remedy both at final hearing and at an interlocutory stage, where the judge is satisfied that:
- the employee is likely to receive a favourable ruling; and
- the employer is able to continue employing the employee without difficulty.
This could lead to situations where the employee is in the employment of the employer during the period between filing and the final ruling.
The burden of proof
The LDA places the burden of proof on the employers in a dispute. Examples include:
- Working Hours: The LDA states that an employee's attendance records create a presumption that employees were on duty; whether it reflects regular work hours or overtime. If a dispute arises and the employer wishes to challenge the records, the burden of proof lies with the employer to make that claim good.
- Wages: If the employee can show that money was paid to them by their employer, this will create a presumption that the money constituted the payment of wages for work performed. If the employer wishes to dispute this, they shall bear the burden of proof in showing that the payment did not constitute wages.
In the main part, the LDA is a restatement into one act of the various legislative strands that comprise this area. The proposed reforms touch upon multiple parts of the dispute resolution process including ADR, court procedure and factual presumptions. The LDA is intended to shepherd in a swifter and more pragmatic regime for the disposition of employment claims. Whether it is successful in doing so will remain to be seen.