I. Introduction

The Labor Incident Act (hereinafter the “Act”) was promulgated on December 5, 2018 and implemented on January 1, 2020. As a specialized law of the Taiwan Code of Civil Procedure where labor incidents occupy a large part of civil litigations, the implementation of the Act will certainly impact many pending labor-related cases. As such, pursuant to Article 52 of the Act, the Civil Department of the Judicial Yuan lately announced the draft of the Enforcement Rules of the Labor Incident Act (hereinafter the “Enforcement Rules”) in hope of clarifying how cases filed prior to the implementation of the Enforcement Rules will be handled. Businesses should be aware of such change.

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II. Key features of the Enforcement Rules

The key features of the Enforcement Rules are as follows:

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(I) For labor incidents that were pending at a common court prior to the implementation of the Act (Article 2 of the Enforcement Rules)

1. Such cases shall be closed according to their status pursuant to the procedure prescribed in the Act, and Paragraph 2 of Article 16 of the Act is not applicable. (Subparagraph 1 of Paragraph 1 of Article 2 of the Enforcement Rules)

Remark of the draft: “In pursuit of a stabilized procedure and to protect the parties’ procedural interests, in principle, labor incidents that were filed prior to the implementation of the Act shall be closed by the court in accordance with the Act, and the pre-mediation under Paragraph 2 of Article 16 of the Act is not applicable.”

2. The jurisdiction of the case is determined by either the law at the time the case was admitted or Paragraph 1 of Article 6 of the Act. Any petition from worker to transfer of venue pursuant to Paragraph 1 of Article 6 and Article 7 of the Act shall be submitted prior to oral arguments of the case. (Subparagraph 2 of Paragraph 1 of Article 2 of the Enforcement Rules)

Remark of the draft: “The jurisdiction shall be determined according to the law at the time the case was admitted or Paragraph 1 of Article 6 of the Act.”

3. The court fee shall be collected in accordance with the law at the time of prosecution, petition, appeal, or motion. (Subparagraph 3 of Paragraph 1 of Article 2 of the Enforcement Rules)

Remark of the draft: “With respect to the court fee deduction mechanism, matters prescribed in Paragraph 1 only apply to the prosecution, petition, appeal, and motion after the implementation of the Act so that procedural stability will not be affected.”

4. The Act is applicable to any matter prescribed in the aforesaid paragraph which is closed after the implementation of the Act and has been appealed or motioned. (Paragraph 2 of Article 2 of the Enforcement Rules)

Remark of the draft: “For matters prescribed in Paragraph 1, which is closed after the implementation of the Act and has been appealed or subject to a motion, this Act, as then been implemented, is certainly applicable.”

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(II) For labor incidents that were filed at an intellectual property court prior to the implementation of the Act (Article 3 of the Enforcement Rules)

1. For labor incident cases that were filed at an intellectual property court prior to the implementation of the Act and is pending, after the implementation of the Act, such cases shall be closed according to its status pursuant to the procedure prescribed in Paragraph 4 of Article 4 of the Enforcement Rules. (Paragraph 1 of Article 3 of the Enforcement Rules)

Remark of the draft: “Intellectual property courts also have jurisdiction over labor incidents involving intellectual property matters. Due to the nature of the intellectual property court as a specialized court, for cases filed at an intellectual property court prior to the implementation of the Act and pending, such cases shall be closed according to the procedure provided in Paragraph 4 of Article 4 of the Enforcement Rules. This is the reason Paragraph 1 is provided.”

2. Subparagraphs 2 and 3 of Paragraph 1 of the preceding article apply mutatis mutandis to the preceding circumstance. (Paragraph 2 of Article 3 of the Enforcement Rules)

Remark of the draft: “Subparagraphs 2 and 3 of Paragraph 1 of the preceding article regarding the jurisdiction and court fee shall apply mutatis mutandis to the matters prescribed in Paragraph 1.”

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(III) For labor incidents that were motioned at an upper court prior to the implementation of the Act and is pending (Article 4 of the Enforcement Rules)

1. For labor incidents that were motioned at an upper court prior to the implementation of the Act and is pending, if such cases have been remanded or transferred after the implementation of the Act, such cases shall be handled by a labor specialty court or a specialty department (hereinafter “labor court”), except those remanded or transferred to an intellectual property court. (Article 4 of the Enforcement Rules)

2. Remark of the draft: “For labor incidents that were brought to an upper court by way of a motion prior to the implementation of the Act and was then admitted, such case, if being remanded or transferred after the implementation of the Act, shall be tried at the labor court pursuant to the provisions of the Act, except for those remanded or transferred to an intellectual property court, in light that no labor specialized court has been set up in the said court, for avoidance of disputes.”

(IV) For labor incidents that have been petitioned for a mediation or deemed to be in a mediation, whose mediation procedure have not been closed prior to the implementation of the Act (Article 5 of the Enforcement Rules)

1. For labor incidents that have been petitioned for a mediation or deemed to be in a mediation whose mediation procedure have not been closed prior to the implementation of the Act, such cases shall still follow the mediation procedure provided in the Code of Civil Procedure after the implementation of the Act. (Paragraph 1 of Article 5 of the Enforcement Rules)

Remark of the draft: “For labor incidents that were in the process of applying for a mediation or were deemed in mediation whose mediation procedure have not been closed prior to the implementation of the Act, such cases shall still be handled in accordance with the mediation procedure provided in the Code of Civil Procedure after the implementation of the Act.”

2. If the mediation of the preceding paragraph was unsuccessful and the case was filed for litigation pursuant to Paragraph 1 of Article 419 of the Code of Civil Procedure, such case shall be submitted to the labor court and handled appropriately according to its circumstances. Paragraph 1 of Article 16 of the Act does not apply to the cases that are deemed to have been prosecuted at the time the case petitioned for mediation pursuant to Paragraphs 2 and 3 of the same or have been deemed pending at a court since the date of the original complaint or payment order filing pursuant to Paragraph 4 of the same.(Paragraph 2 of Article 5 of the Enforcement Rules)

Remark of the draft: “Depending on the individual circumstances of the case, after a case is assigned to a labor court, the labor court shall handle it appropriately. If the court deems the case is ready for an oral argument, it shall order oral argument in accordance with the law. If the court deems the case is not ready, it shall not order oral argument but instead order preparation for oral argument. And if the mediation of the labor incident of the preceding paragraph is unsuccessful and such case is deemed to be under litigation pursuant to the Code of Civil Procedure, or if the case is already pending at a court prior to the implementation of the Act, pursuant to Paragraph 1 of Article 2 of the Enforcement Rules, such case does not need submitted for a labor mediation procedure, and hence Paragraph 1 of Article 16 of the Act regarding the necessity of labor mediation under the Act does not apply.    

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(V) For labor incidents that were already filed at a court prior to the implementation of the Act and have been assigned to mediation pursuant to the Code of Civil Procedure and the mediation procedure has not been completed. (Article 6 of the Enforcement Rules)

1. For labor incidents that were already filed at a court prior to the implementation of the Act and have been assigned to mediation pursuant to the Code of Civil Procedure and the mediation procedure has not been completed, such cases shall be handled according to the procedure prescribed in the Code of Civil Procedure; the same applies to those that were assigned to mediation after the implementation of the Act.

2. Remark of the draft: “For labor incidents that were assigned to mediation pursuant to Article 420-1 of the Code of Civil Procedure prior to the implementation of the Act and the procedure has not been completed or those assigned to mediation after the implementation of the Act, the mediation procedure still proceed in accordance with the Code of Civil Procedure.”

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III. Conclusion

Based on the aforementioned, the introduction of the Enforcement Rules provides a general regulation for the handling of labor incidents pending at all instances and in all types of courts prior to the implementation of the Act, and should be able to resolve the possibility of conflicts in the application of the Act to a certain degree. However, one should note that the Enforcement Rules are still in the draft stage, and they do not provide specifics regarding legal attachment incidents. Businesses should pay attention to the making of the specific provisions of the Act in the future.

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