Angela Wu
The Taichung Branch of the Taiwan High Court rendered the 108-Lao-Shang-21 Decision of April 28, 2020 (hereinafter, the “Decision”), holding that the “continuous work” under Article 9, Paragraph 1 of the Labor Standards Law and Article 6, Subparagraph 4 of the Enforcement Rules of the Labor Standards Law refers to work derived from achieving an economic activity that the employer does not intend to continue.
According to the facts underlying this Decision, the Appellant (the Environmental Protection Bureau of Taichung City Government) hired the Appellee as a temporary worker whose job description is “handling the work assigned by the Appellant under the Appellant’s guidance and supervision with the working hours, workplaces and job description changed from time to time according to business needs.” The Appellant subsequently terminated the labor contract between the parties (hereinafter, the “Contract at Issue”) for the Appellee’s “incompetence for work.” The Appellee asserted that since the Contract at Issue is an indefinite contract, the contract is not terminated ipso facto as a result of expiration. Therefore, a suit was filed to confirm the existence of the employment relationship between the Appellee and the Appellant.
Pursuant to the Decision, Article 9, Paragraph 1 of the Labor Standards Law and Article 6, Subparagraph 4 of the Enforcement Rules of the Labor Standards Law, labor contracts consist of fixed-term contracts and indefinite contracts. Fixed-term contracts may be used for temporary, short-term, seasonal or specific work, while continuous work should be covered by an indefinite contract. Specific work refers to non-continuous work which can be completed within a specific period. The common type of employment under the current Labor Standards Law and the labor market is continuous work, while non-continuous work is exceptional. In addition, the Labor Standards Law provides different protection for workers working on continuous work and non-continuous work. Therefore, strict interpretation should be adopted for workers working on non-continuous work to prevent abuse of employed manpower by the employers. The so-called “non-continuous work” refers to work derived from achieving an economic activity that the employer does not intend to continue or maintain. To determine if a job is non-continuous, it is necessary to consider if the same work is covered by both indefinite and fixed-term contract workers within the enterprise according to the position specifically indicated in the job description documents of such business unit. If so, this will serve as the basis for finding that there is continuous work.
It was further indicated in this Decision that although the Contract at Issue stipulates the term of the contract, still the Contract at Issue indicates that the Appellant will hire the Appellee as a temporary to accommodate business needs. The Appellee will accept the Appellant’s guidance and supervision, handle the work designated and tasks assigned by the Appellant and the working hours, workplaces and job description may be changed from time to time according to business needs. Since the Contract at Issue did not define the scope of “business needs,” this shows that the Appellant hired the Appellee to provide manpower support for nonspecific business needs. Since this is different from the nature of specific work that can be completed within a specific period of time, this should be regarded as a labor contract on continuous work. Therefore, the Contract at Issue shall be an indefinite contract. In addition, whether the Contract is an indefinite or fixed-term contract, it was determined when the contract was established, and this can only be determined based on the circumstance in which the contract was established. Since the Contract at Issue was an indefinite contract when it was established, it certainly should not become a fixed-term contract after the business the employee was assigned to support was concluded or terminated. Therefore, the Contract at Issue is an indefinite contract, which is not terminated upon expiration of an agreed-upon term.
Finally, it was held in this Decision that the Appellee was indeed incompetent for his work, and that the Appellant’s termination of the labor contract between the parties does not violate the principle that termination of employment should be the last resort. Since the Contract at Issue was invalided by the Appellant’s termination, the Appellee’s request was rejected.