Chapter 2 Labor Mediation Procedures
Labor cases should be mediated by the court beforelitigation, except where one of the following circumstances applies:
1. A situation, as described in Subparagraphs 2, 4, or 5, Paragraph, 1, Article 406 of Taiwan Code of Civil Procedureexists.
2. The dispute arises from circumstances as described in Article 12 of the Act of Gender Equality in Employment.
Where the party involved in a case, as described in the preceding paragraph, initiates an action directly with the court, the actionshall then be deemeda motion for mediation.
For labor cases not covered in the provisions of the first paragraph, the parties involved may also movefor mediation before filing lawsuits.
Unless otherwise stipulated by law, courts in charge of labor cases shall have jurisdiction over labor mediation cases.
The provisions of Paragraph 2 and Paragraph 3 of Article 6, and Article 7 apply mutatis mutandis to labor mediation procedures. However, if the workermakes a motionfor transfer, such motion must be madebefore the first mediation date.
The motion for mediation, and any declaration or statement on other dates, shall be made inpleadings. However, for cases involving less than five hundred thousand New Taiwan Dollars in the price or value of the mediated claim, the motion may be made orally.
The oral petition, declaration, or statement, as described in the preceding paragraph, shall be submitted in front of the court clerk. The court clerk shall record it into a transcript and sign.
The pleading for motion or transcript shall include following items:
1. The name, domicile or residence of the movant. The name, principal office, office or place of business, if the movant is a legal person, institution or a group.
2. The name, domicile or residence of the respondent. The name, principal office, office or place of business, if the respondent is a legal person, institution or a group.
3. If applicable, the name, domicile or residence of the legal representative, and the relationship between the legal representative and the party.
4. The purpose of the motion, and theoccurrence giving rise to such motion.
5. Evidence for proof or for clarification.
6. Attached documents and the number of such documents.
7. The name of the Court.
8. Date (month/day/year)
Following items should be recorded in the pleading for motion or transcript:
1. Gender, date of birth, occupation, identity document number, for-profit business identitynumber, telephone number, and other information to adequately identify the movant, respondent, other interested parties, and the legal representative;
2. If applicable, the name, domicile or residence of the interested parties;
3. Matters required for thedetermination of jurisdictional court and its applicable procedures;
4. If applicable, details of other relevant cases pending in court;
5. Potential issues and important facts and evidence pertaining to such issues;
6. Summary of negotiation or other processes that took place between the parties prior to the motion for mediation.
For multiplerelated labor cases, the court may conduct a combined mediation, either by motion or on its own initiative.
Both parties may petition with consent to combine related civil cases into mediation with the labor case, and such a petition may also be deemed a motion for mediation on the aforementionedcivil cases.
If the said civil cases, petitioned for combined mediation, are already pending in court, the on-going civil proceedings shall be stayed. Once a resolution is reached, the mediation procedure concludes. If theresolution is not reached, the mediation procedure shall continue.
If the civil cases which are combined for mediation are not pending in court, and the mediation resolution is not reached, the said cases may be transferred to civil trial or other proceedings, according tothe parties' wish. If the parties wish not to transfer, the mediation procedure concludes.
The court should recruitprofessionals with knowledge and experience in labor relations or labor affairs as labor mediation committee members.
When the court recruits labor mediation committee members, as described in the preceding paragraph, eithergender ratio of the committee members shall not be belowthan one third of the total number of selected committee members.
Matters concerning the qualifications, recruiting, assessment, training, dismissal and remuneration of the labor mediation committee members shall be determined by the Judicial Yuan.
The provisions concerning the Disqualification of Court Officers shall apply mutatis mutandis to labor mediation committee members.
Labor mediation should be conducted through Labor Mediation Committee, which consistsof one labor court judge and two committee members.
The labor mediation committee members, as described in the preceding paragraph, shall be assigned by the court, after the evaluation of their professional learning and experience, the appropriate composition of a labor mediation committee, and other matters.
A labor mediation committee member shall process labor mediation on the basis of neutrality and impartiality.
Matters relating to the assignment of mediation committee members shall be determined by the Judicial Yuan.
The labor court judgemay reject a motion for mediation if the motion fails to conform to the law.However, if the violation may be rectified, the court shallorder rectification of the motion within a designated period of time.
A labor court judge shall also decide on the following matters:
1. The ruling on judicial power;
2. The ruling on jurisdiction.
A labor court judge shall not arbitrarily rule to reject a mediation motion on the grounds of the inability to mediate, or having no obvious need to mediate, or having no chance of reachingan agreement, or the case having been mediated by other statutory agencies but unsuccessful.
When a labor mediation committee conducts a mediation, the judge of the committee shall directtheprocedures.
The judge of the Labor Mediation Committee shall on its own initiativedetermine the time frame for mediation at the earliest possible date. The judge shall also designate the date for the first mediation, within thirtydays after filing the motion of mediation, except for conditions as described in the first and second paragraphs of the preceding Article, or other special circumstances.
The labor mediation procedure shall, except for special circumstances, conclude within three sessions and within three months.
All parties should submit facts and evidence as earlyas possible. Except for causesnot attributable to themselves, all submissions should be completed before the end of the second session of mediation.
The labor mediation committee shall hear the statements of the parties as soon as possible, organize relevant issues and evidence, inform the parties in due course of the possible outcomes of the litigation, and may investigate the facts and necessary evidence by motion or on its own initiative.
With regard to the results of the evidence investigation as mentioned in the preceding paragraph, the mediation parties and interested parties who are aware of such evidence should be affordedthe opportunity to be heard before the court.
The labor mediation procedures shall not be public. However, if it is deemed appropriate by the labor mediation committee, individuals who do not interruptthe case may be allowed forattendance.
For labor cases that arise due to a violation of the provisions of Article 12 of the Act of Gender Equality in Employment, after weighing and considering the details of the incident, the physical and mental condition and the wishof the workers, the labor mediation committee may, if it is deemed appropriate, adopt seclusion measures by using shades or video equipment in mediation proceedings.
The labor mediation is successfully established and concluded when all parties reach an agreement, and the mediation transcript is thusly recorded.
The established mediation, as describedin the preceding paragraph, carries the same legal weight as a final and binding judgment.
The labor mediation committee maydevise and determinethe terms of mediation to resolve the casewith the consent of both parties.
The terms of mediation, as described in the preceding paragraph, unless otherwise agreed upon by both parties, shall be determined by the committee based on the majority opinion. If there are numerous opinions without a majority opinion, the opinion with the highest vote shall prevail.
The terms of mediation shall be made into a written record including a date notation, or recorded in the transcript of mediation procedures by the court clerk. Once the aforementionedmediation termsare signed by the judge and every member of the labor mediation committee, the mediation resolution is deemed established.
The written document with signatures of the judge and every member of the labor mediation committee, as described in the preceding paragraph, shall be deemed the mediation transcript.
As for the signatures mentioned in the preceding two paragraphs, if for any reason, a committee member is unable to sign, the judge shall notethe reasons; if the judge is unable to sign for areason, the other committee member shall note such reason.
If the parties cannot reach an agreement in the mediation, the labor mediation committee shall, on its own initiative, take all things into consideration, and present an appropriate proposal, based on the premise of balanced interests for both parties, without violation of the main intention expressed by the parties.
The proposal, as referred to in the preceding paragraph, should serve to confirm the rights and obligations of both parties, to order monetary payments, to deliver specific objects or other payments for property, or to establish appropriate actions for resolving individual labor disputes, and state the summaryreason and purpose of the proposal. The proposalshould be signed by the judge and the members of the entire committee.
If and when the labor mediation committee deems appropriate, the committee may, during the mediation period with all parties present, orallyinform them of the content and reasoning ofthe appropriate proposal, and have the court clerk record the presentation in the mediation transcript.
The provisions of Paragraph 2 and Paragraph 5 of the preceding Article apply mutatis mutandis to the appropriate proposal as described in the first paragraph.
In addition tothe notice presented pursuant to the provisions of Paragraph 3 of the preceding Article, the appropriate proposal should be delivered to the parties involved and other interested parties participating in the mediation.
The parties involved and other interested parties participating in the mediation may raise objections within ten days of the peremptory period after the arrival of, or being informed of the content of the proposal, as described in the preceding paragraph.
If objections are raised in conformity with the law within the period as prescribed in the preceding paragraph, the mediation shall be deemed unsuccessful, and the court shall inform or otherwise notify the parties involved and other interested parties participating in the mediation. If no objections are raised in conformity with the lawwithin the allowed period, as prescribed in the preceding paragraph, the mediation shall be deemed successful under the aforementionedproposal.
If the mediation is unsuccessful, as prescribed in the provisions of the preceding paragraph, unless the mediation movant submits an objection to the court concerning the continuation of litigation proceedings within ten days of the peremptory period after being informed of the mediation results, the case shall continue in litigation proceedings, and it shall be deemed that the action is initiated when the motion for mediation is filed. This provision also applies to cases where an action is initiated prior to the arrival of the appropriate proposal, as mentioned in the first paragraph.For those cases where initiating an action is deemed a motion for mediation,all effects resulting from the original initiation of the action shall remain in effect.
The judge who participates in the labor mediation committee shall also preside over the same case as it continues in litigation proceedings, pursuant to the provisions of the preceding paragraph.
In the mediation proceedings, the advice given by the labor mediation committee members or the judge, and the statements or concessions made by the parties that are unfavorable to themselves, shall not be adopted as the grounds for judgment, when the said case is moved to litigation after anunsuccessfulmediation.
If the statements or concessions, as described in the preceding paragraph, are established in written agreement with regard to the claims, facts, evidence or other sanctioned items, the parties shall be legally bound by such terms. However, this rule does not apply, ifthere areobviously unfairterms, amendments with the consent of parties, events not imputableto the parties, or other circumstances.
After careful consideration, if the labor mediation committee considersthat a mediation is not conducive to a prompt and proper resolution to a dispute, or if the committee cannot propose an appropriate proposal on its own initiative, the mediation shallbe deemed unsuccessful, and the committee shall inform or notify the parties involved.
The provisions of Paragraph 4 and Paragraph 5 of Article 29 apply mutatis mutandis to cases of unsuccessful mediation, or other circumstances, as described in the preceding paragraph.