Under the influence of EU case law, the ―on call‖ time (Bereitschaftdienst), which was originally regarded as not working time-unless the employee actually provide[r]
(1)HỘI THẢO KHOA HỌC QUỐC TẾ
LUẬT HỌC TRƯỚC BIẾN ĐỔI CỦA THỜI ĐẠI
International Conference
Laws in a Changing World
TẬP
Co-organizer: Sponsored by:
RISC CONSORTIUM
U R I N C O
(2)LỜI CÁM ƠN!
Ban Tổ chức Hội thảo khoa học quốc tế ―Luật học trước biến đổi thời đại‖ (Laws in a Changing World) xin chân thành cám ơn:
TS Nguyễn Mạnh Thắng – Chủ tịch Hội đồng Quản trị, Tổng Giám đốc Công ty Cổ phần đầu tư Đô thị Khu cơng nghiệp Sơng Đà hỗ trợ kinh phí để tổ chức Hội thảo này;
Mạng lưới Nghiên cứu so sánh Hội nhập khu vực gắn kết xã hội (RISC) hỗ trợ tài cho cơng tác tổ chức, hỗ trợ cơng tác xuất Kỷ yếu Hội thảo;
Viện nghiên cứu phát triển xã hội (ISDS) tham gia phối hợp tổ chức Hội thảo; Quý chuyên gia, nhà khoa học quan tâm, dành thời gian viết tới tham dự, chia sẻ Hội thảo
Trân trọng cám ơn kính chúc sức khỏe, hạnh phúc, thành cơng!
(3)CHƢƠNG TRÌNH DỰ KIẾN HỘI THẢO QUỐC TẾ “LUẬT HỌC TRƢỚC BIẾN ĐỔI CỦA THỜI ĐẠI”
Thời gian: Từ 8h00-17h00, ngày 20/8/2019 (Thứ Ba)
Địa điểm: Tòa nhà Sunwah, Khu Quảng trƣờng ĐHQGHN, (số 144, Xuân Thủy, Cầu Giấy, Hà Nội)
7h30-8h00 Đăng ký đại biểu
8h00-8h10 Tuyên bố lý do, giới thiệu đại biểu, khách mời 8h10-8h20 Phát biểu khai mạc Chủ nhiệm Khoa Luật
BUỔI SÁNG Phiên 1:
LÝ THUYẾT PHÁP LUẬT TRƢỚC BIẾN ĐỔI CỦA THỜI ĐẠI (TS Fiona Donson; PGS.TS Vũ Công Giao)
8h20-8h40 Cách mạng công nghiệp 4.0: Những ảnh hưởng CMCN 4.0 đòi hỏi pháp luật
GS.TS Geng-Schenq Lin 8h40-8h55 Nhà nước pháp quyền Việt Nam – Những giá trị cốt lõi
những khía cách tiếp cận
GS.TSKH Đào Trí Úc 8h55-9h10 Những trường phái khoa học pháp luật giới
ảnh hưởng tới luật học Việt Nam
GS.TS Phạm Hồng Thái ThS.NCS Nguyễn Anh Đức 9h10-9h25 Nhận diện thay đổi pháp luật bối cảnh công
nghệ số
PGS.TS Nguyễn Thị Quế Anh 9h25-10h15 Thảo luận
10h15-10h20 Giải lao
Phiên 2:
LUẬT TƢ TRƢỚC BIẾN ĐỔI CỦA THỜI ĐẠI (GS TS, Geng-Schenq Lin; PGS.TS Ngô Huy Cƣơng)
10h20-10h40 Sự phát triển trí tuệ nhân tạo pháp luật Đài Loan: Phân tích trường hợp trách nhiệm xe tự hành
GS JSENG Pin-Chieh (Đài Loan)
10h40-10h55 Cải cách chế định vật quyền nhằm đáp ứng yêu cầu đời sống xã hội Việt Nam đại
PGS.TS Ngô Huy Cương 10h55-11h10 Pháp luật lao động Việt Nam trước biến đổi thời đại
PGS.TS Lê Thị Hoài Thu PGS.TS Trần Thị Thúy Lâm 11h10-12h00 Thảo luận
(4)BUỔI CHIỀU Phiên 3:
LUẬT CÔNG TRƢỚC BIẾN ĐỔI CỦA THỜI ĐẠI (GS JSENG Pin-Chieh; PGS.TS Nguyễn Hoàng Anh)
13h30-13h45 Minh bạch tư pháp – Những vấn đề nghiên cứu đặt Việt Nam trước biến đổi thời đại
PGS.TS Nguyễn Ngọc Chí 13h45-14h00 Chế độ tiếp cận mở sở hữu triển vọng Việt Nam
NCS Nguyễn Quang Đức 14h00-14h20 Quản trị tốt giới đại
TS Fiona Donson; TS Lawrence Siry 14h20-15h15 Thảo luận
15h15-15h20 Giải lao
Phiên 4:
QUYỀN CON NGƢỜI VÀ MỘT SỐ VẤN ĐỀ KHÁC CỦA LUẬT HỌC TRƢỚC BIẾN ĐỔI CỦA THỜI ĐẠI (PGS.TS Chu Hồng Thanh; GS Bard Andreassen)
15h20-15h40 Nghĩa vụ xuyên biên giới doanh nghiệp: Cách tiếp cận nhân quyền
GS Bard Andreassen 15h40-15h55 Pháp luật tố tụng dân kỷ nguyên số
TS Nguyễn Bích Thảo 15h55-16h10 Trợ giúp pháp lý biện pháp cốt yếu để tiếp cận công lý
trong xã hội đại: Nghiên cứu trường hợp Việt Nam
PGS.TS Vũ Cơng Giao; NCS Hồng Bích Ngọc 16h10-16h45 Thảo luận
(5)TENTATIVE AGENDA OF THE INTERNATIONAL CONFERENCE “LAWS IN A CHANGING WORLD”
Venue: Building Sunwah, VNU Square, 144, Xuan Thuy Street, Cau Giay District, Hanoi On 20th August 2019 (Tuesday)
7h30-8h00 Registration
8h00-8h20 Introduction and Opening Remark: Dean of the School of Law, VNU
FIRST SESSION:
LEGAL THEORIES IN A CHANGING WORLD (Chair: Dr Fiona Donson; Assoc Prof.Dr Vũ Công Giao)
8h20-8h40 Industry 4.0: The Impacts of Industry 4.0 and How the Law Should Respond to it
Prof Geng-Schenq Lin 8h40-8h55 The rule of law in Vietnam – Core values and new aspects of approach
Prof Dr Dao Tri Uc 8h55-9h10 Schools of Jurisprudence and Influences on jurisprudence in Vietnam Prof Dr Pham Hong Thai – PhD Candidate Nguyen Anh Duc 9h10-9h25 Identify changes of laws in the digital technology context
Assoc Prof Dr Nguyen Thi Que Anh 9h25-10h15 Discussions
10h15-10h20 Tea break
SECOND SESSION:
PRIVATE LAW IN A CHANGING WORLD
(Chair: Prof Geng-Schenq Lin; Assoc Prof Dr Ngô Huy Cƣơng)
10h20-10h40 The Development of AI and Law in Taiwan - Focus on Autonomous Car Liability
Prof JSENG Pin-Chieh 10h40-10h55 Real right institution reform to meet the requirements of Vietnamese
modern social life
Assoc Prof Dr Ngo Huy Cuong 10h55-11h10 Vietnam‘s Labour Law in the Changing era
Assoc Prof Dr Le Thi Hoai Thu Assoc Prof Dr Tran Thi Thuy Lam 11h10-12h00 Discussions
(6)THIRD SESSION:
PUBLIC LAW IN A CHANGING WORLD
(Prof JSENG Pin-Chieh; Assoc Prof.Dr Nguyễn Hoàng Anh)
13h30-13h45 Judicial transparency– Some Issues in Vietnam in the age of changes Assoc Prof Dr Nguyen Ngoc Chi 13h45-14h00 Open access in the ownership regime and its prospects in Vietnam
PhD Candidate Nguyen Quang Duc 14h00-14h20 Good Governance in the Modern World
Dr Fiona Donson; Dr Lawrence Siry 14h20-15h15 Discussions
15h15-15h20 Tea break
FOURTH SESSION:
HUMAN RIGHTS AND OTHER ISSUES OF LEGAL SCIENCE IN A CHANGING WORLD
(Assoc Prof.Dr Chu Hồng Thanh; Prof Bard Andreassen)
15h20-15h40 Business' Duties Across Borders: The New Human Rights Frontier Prof Bard Andreassen 15h40-15h55 Civil Procedure law in the Digital age
Dr Nguyen Bich Thao 15h55-16h10 Legal Aid as a Crucial Means of Access to Justice in Modern
Times: The Case of Vietnam
Assoc Prof.Dr Vũ Công Giao; PhD Candidate Hoang Bich Ngoc 16h10-16h45 Discussions
(7)ĐẠI HỌC QUỐC GIA HÀ NỘI
KHOA LUẬT
DANH SÁCH BÀI VIẾT THAM DỰ HỘI THẢO QUỐC TẾ “LUẬT HỌC TRƢỚC BIỂN ĐỔI CỦA THỜI ĐẠI”
(LAWS IN A CHANGING WORLD)
1 INDUSTRY 4.0: THE IMPACTS OF INDUSTRY 4.0 AND HOW THE LAW SHOULD RESPOND TO IT
Prof Dr Geng-Schenq Lin Dean of the College of Law, Tunghai University CHANG, Justin Mekkem industrial inc THE DEVELOPMENT OF AI AND LAW IN TAIWAN - FOCUS ON AUTONOMOUS CAR LIABILITY
Prof Dr JSENG Pin-Chieh Professor, Department of Financial and Economic Law, College of Law, National Chung Cheng University, Taiwan; BUSINESS' DUTIES ACROSS BORDERS: THE NEW HUMAN RIGHTS FRONTIER
Prof Bard Andreassen Norwegian Centre for Human Rights, Faculty of Law, University of Oslo GOOD GOVERNANCE IN THE MODERN WORLD
Dr Fiona Donson; Dr Lawrence Siry, University College Cork, Ireland Đưa sống vào pháp luật đưa pháp luật vào sống – câu chuyện soạn thảo pháp luật thi hành pháp luật Việt Nam
Assoc Prof Dr Nguyễn Hoàng Anh Vietnam National University, Hanoi- School of Law Tính tương xứng tự ngơn luận quyền lãng quên thời đại số: pháp luật và thực tiễn (FREEDOM OF EXPRESSION AND RIGHT TO BE FORGOTTEN: The counter balance in law and practice)
Dr Ngô Minh Hương Vietnam National University, Hanoi- School of Law Nhà nước pháp quyền Việt Nam – giá trị cốt lõi khía cạnh tiếp cận (THE RULE OF LAW IN VIETNAM –CORE VALUES AND NEW ASPECTS OF APPROACH)
Prof Dr Đào Trí Úc Vietnam National University, Hanoi- School of Law Pháp luật tố tụng dân kỷ nguyên số (CIVIL PROCEDURE LAW IN THE DIGITAL AGE)
(8)9 Pháp luật quyền người quốc tế gia đình – nhìn từ khứ hàm ý sách, pháp luật với Việt Nam giới đổi thay (INTERNATIONAL HUMAN RIGHTS LAW ON THE FAMILY – LOOKING FROM THE PAST AND POLICY AND LEGAL IMPLICATIONS FOR VIETNAM IN A CHANGING WORLD)
Vũ Ngọc Bình Viện Dân số, Gia đình Trẻ em 10 Minh bạch tư pháp – vấn đề nghiên cứu đặt Việt Nam trước biến đối thời đại (JUDICIAL TRANSPARENCY IN VIET NAM- THE RESEARCH GAP TO BE FURTHER STUDIED IN THE AGE OF CHANGE)
Assoc Prof Dr Nguyễn Ngọc Chí Vietnam National University, Hanoi- School of Law 11 Luật Hiến pháp thời kỳ đổi Việt Nam (CONSTITUTIONAL LAW IN THE RENOVATION PERIOD IN VIETNAM)
Prof Dr Nguyễn Đăng Dung Vietnam National University, Hanoi- School of Law 12 Hoàn thiện pháp luật sở hữu trí tuệ pháp luật cạnh tranh Việt Nam trước biến đổi thời đại (PERFECTIONIZING LAW ON INTELLECTUAL PROPERTY AND LAW ON COMPETITION OF VIETNAM IN THE CHANGING WORLD)
Dr Phan Quốc Nguyên Vietnam National University, Hanoi- School of Law 13 Một số tác động biến đổi thời đại pháp luật lao động Việt Nam kiến nghị giải pháp (SOME EFFECTS OF CHANGES IN CONTEXT ON VIETNAMESE REGULATIONS ON LABOUR AND PROPOSALS)
Dr Nguyễn Lê Thu Vietnam National University, Hanoi- School of Law 14 Quyền người pháp luật thời đại trí tuệ nhân tạo (HUMAN RIGHTS AND LAW IN THE AGE OF ARTIFICIAL INTELLIGENCE)
Assoc Prof Dr Đặng Minh Tuấn Vietnam National University, Hanoi- School of Law 15 Những thách thức tự an ninh cá nhân xã hội đại (CHALLENGES ON PERSONAL FREEDOM AND SECURITY IN MODERN SOCIETY)
Assoc Prof Dr Chu Hồng Thanh Vietnam National University, Hanoi- School of Law 16 Quyền riêng tư thời đại kỹ thuật số: Liên hệ với bối cảnh Việt Nam (THE RIGHT TO PRIVACY IN DIGITAL AGE: REFLECTION ON THE VIETNAMESE CONTEXT)
(9)1 THE IMPACTS OF INDUSTRY 4.0 ON THE LAW AND HOW CAN WE
RESPOND TO IT - FOCUSING ON THE EMPLOYMENT LAW-
LIN, Geng-Schenq CHANG, Justin
I Introduction
II Who is “employee” III Working time
IV Workers’ participation V Strike
I Introduction
Industry 4.0 (―Industrie 4.0‖ ) is officially proposed by the German government in 2011 which is part of the High Tech 2020 Strategy of German government It focuses on promoting digital manufacturing forward by increasing digitization and reciprocally connecting with products, value chain and business models Besides, it supplies with integrating cyber physical systems (CPS) and Internet of Things and Services (IoTS) with enhancing productivity and efficiency
According to the study of the University of St Gallen on the project ―Shareground Arbeit 4.0‖1,
there are two major drivers for change: a) Machines learn to think
b) Intelligent machines become omnipresent
Rigid organizations will dissolve In addition to digitalization, globalization of enterprises, flexibilization of their organizational forms are to be expected A massive transformation to be expected, another form of leadership and communication will be created Industrial robots are used in Japan, North America and China, especially in the automotive sector Machines will communicate with one another directly and also with workpieces In the digital network economy, machines become colleagues, cooperation partners and inspectors Key qualifications of human digital work are the ability to read, combine and interpret data streams Creativity and mastery of machines should remain with humans Mobility should make it possible to work without borders Work and private life will become blurred
The following phenomena and many others are emerging in Taiwan:
MAYO Human Capital (Taiwan)2 introduces an AI-based Video Interview Tool ―Lasso AI Video Interview‖
Wistron Medical (Taiwan) cooperate with B-Temia Inc (Canada) to introduce a smart external powered exoskeleton robot ―Keeogo‖3
Prof Dr Tunghai University, Taiwan
Mekkem industrial inc.（bicycle parts and metal processing consulting company) supply chain management
1
file:///C:/Users/User/Desktop/dl-150902-studie-st-gallen%20(2).pdf(2019.08.07)
2 https://www.youtube.com/watch?v=6_A3JSg8oNQ(2019.08.07)
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Foxconn will replace 80% of workers with robots within years4 Foxconn: an unmanned factory can even operate on the moon5
This may have its bright side: e.g the causes of discrimination (by interview) can be minimalized, the employee can have a more safe and healthy work environment, the enhancement of the efficiency of work, the evaluation of performance can be more objective and creation of new jobs But it may also result in mass unemployment, necessitating the (re)training of employee, the employer‘s supervision and control over the employees will be strengthened and leads to ―sweatshop‖6
To the impacts of Industry 4.0 upon law or especially labor law, we lack an authoritative study on this issue7
On the other hand the discussion of German Law Scholars can be noteworthy 2016 in Essen, Germany, The employment and social law department of the 71 German Lawyers' Conference (Deutsche Juristentag) in Essen has dealt with the topic "Digitalization of the world of work - challenges and regulation needs" (Digitalisierung der Arbeitswelt – Herausforderungen und Regelungsbedarf) The focus was on new forms of work organization and distribution of working hours as well as the effects of digitization on the place of work as well as questions of further education and data protection
The following resolutions are passed These may reflect what problems the labor law has to face in the near future from the viewpoint of German lawyers The five major recommendations are
In regard to employment law
1 Concerning the crowdworker
Self-employed crowdworkers should only refer to those who are economically independent To protect the crowdworkers, a reversal of the burden of proof is required (I 1)
Crowdworkers shall enjoy the minimum protection by law
Even independent crowdworkers shall require the minimum legal protection, for example for remuneration, work recovery, occupational safety and contract termination (I a)
All self-employed crowdworkers should be included in Social Welfare Act (SGB) (I 3) Employee-like persons should be included in the application of Wok Council Act (BetrVG) (I 4)
2 Concerning the Working time
The working time law should remain untouched for reasons to protect workers health and safety Working hours for ICT-supported work outside the company and in the home office are documented (II 1)
§ Federal Holiday Law (BUrlG) should be supplemented by the following sentence: "Sentence applies mutatis mutandis, if the employee performs at the instigation of the employer, not only a minor work during the holiday." (II 2)
4 https://ec.ltn.com.tw/article/breakingnews/2469632
https://www.storm.mg/article/1546346
6
Insider exposure Foxconn factory: Workers are Overworked and Burnout,
https://www.bnext.com.tw/article/49465/foxconn-says-investigating-labor-conditions-at-china-factory-used-for-amazon Evil boss 4ni? Amazon again: ―sweatshop‖ ? https://www.taiwannews.com.tw/ch/news/3691457;
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The employee should have the right to determine the timing of working hours, provided that there are no urgent operational reasons (II 3)
An ordinance in the meaning of § 18 of the Safety and Health Protection of Workers at Work (ArbSchG), which deals with the topic of mental stress at work, shall be implemented(II 4)
3 Concerning the place of work
In the case of mobile work, a right to a "home office" should be introduced, provided that there are no operational reasons (III 1)
The regulations of workplace law should be extended to domestic workplaces set up by the employer The employer should be granted access and control rights in accordance with Art 13 Basic Law (GG) (III 2)
4 Concerning the Training
The subject of "training of employees" should be comprehensively regulated by a federal law
A counseling entitlement to qualification by the employer, carried out by an independent person, is to be provided for all employees (IV a)
In the case of job-related qualification, the employee should be paid and exempted from work, with continued pay For further training measures, pay continuation and the financing of the training measure must be regulated in a graduated manner, depending on the relation of the training measure to the company or activity A compensation for remuneration losses is to be provided (IV b)
5 Concerning the Privacy protection
The law of employee data protection shall comprehensively be revised (V 1) In regard to the law of labor relation
The rights of workers‘ participation have to be expanded and improved (IV c) The right of co-determination shall extend to non-automated data processing (V 2) In case of changes of workplaces, the work process or the work environment, the rights of workers‘ participation should be strengthened (I 6) The deregulation of the Works Constitution Act should allow the collective agreements (TV) to create additional employee representation bodies (I 5) In the case of elections to the workers representation, an additional notice by means of information and communication technology (ICT) shall be required (I 7)
The unions need access and communication rights on an electronic basis, such as the use of the company intranet and the mailing list of the employees (I b)
In light of the said resolutions of the 71 German Lawyers' Conference, and from a labor law scholar‘s viewpoint, some important issues of Labor law will be selected and discussed in the following
II Who is“employee” 1 The definition “employee”
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1.1 Taiwan
According the authoritative Interpretation No 740 of Judicial Yuan in 20178- it relates to the question: whether a service contract for the solicitation of insurance business between an insurance solicitor and the insurance company to which the solicitor belongs is a labor contract under Article Sub-paragraph of the Labor Standards Act-, the Judicial Yuan rules that the recognition of employment contract shall depend on
(1) whether the service debtor may freely decide the manner of the provision of service (including working hours), and
(2) whether the service debtor will bear business risks on his own account (for example, the remuneration shall be calculated on the basis of insurance premium received from the solicited insurance)
This Interpretation is followed by The Supreme Court of Taiwan9, The Supreme Administrative Court of Taiwan10
1.2 A comparative viewpoint 1.2.1 EU
For protecting the person who provides services, according to the EU law, the concept ―worker‖ shall be interpreted broadly ―The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.‖11
1.2.2 Germany
Attempting to enhance the clarity of the legal status and accurately reflect the current legal state in a 1:1 manner („1:1 – Kodifizierung "), the German legislator amends a new section of the German Civil Code(BGB), section 611a, which came into effect on April 1, 2017 Pursuant to the said section the employee shall meet the following conditions: to provide services in the way of (1) direction-bounded (weisungsgebundenen), (2) other-directed (fremdbestimmt) and (3) personal dependence (persönlicher Abhängigkeit) Shortly thereafter the Federal Labor Court rules12: The teacher of a music school is not employee, because in a wide range he can decide unilaterally the time of class, the subject of the courses, the type and manner of incidental activities, and receive no instructions from the music school
Comparing the EU and German Law, the concept of ―worker‖ under EU law is broader than the ―employee‖ under German law So e.g a member of the board of directors of a capital company and trainees13, a public servant (in this case: fireman)14and a member of a nonprofit association (in this case: a nurse of the Federation of associations of nurses of the
8
A detailed discussion of this Interpretation, see Lin, On the Definition of employee, Taiwan Law Journal, 2019/02, p 155 ff
9
The Supreme Court of Taiwan in 2017 Taishang Tzi No 301 Civil Judgement
10
The Supreme Administrative Court of Taiwan in 2017 Pang Tzi No 233 Judgement
11 EuGH Urteil 03.07.1986 - 66/85, Rn 16-17, BeckRS 2004, 73510 See also EuGH Urteil 19.7.2017 – C-143/16
(Abercrombie & Fitch Italia Srl / Antonio Bordonaro), NZA 2017, 1247
12
BAG Urt v 27.6.2017 – AZR 851/16, NZA 2017, 1463
13
Concerning the Directive 98/59/EC, EuGH Urteil 9.7.2015 – C-229/14 (Balkaya/Kiesel Abbruch- und Recycling Technik), NZA 2015, 861
14
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German Red Cross)15are treated as a ―worker‖ within the meaning of EU law, but they shall fall outside the scope of ―employee‖ according to the German law
2 Industry 4.0 and the scope of ―employee‖
The above-mentioned – especially according to the German and Taiwan law– criteria for determining the scope of ―employee‖ offer a relatively stable standard However, this is based on the employee/independent contractor dichotomy Faced with the working relations brought about by new technologies and new business models (such as crowd work/platform work), the above-mentioned dichotomy may not be properly addressed; many service provider may fall outside the protection of labor law unsatisfactory To the persons who are economical dependent and social vulnerable like an typical employee (employee-like persons, ―arbeitnehmer-ähnliche Person‖), the German law give them not only protections under the social welfare law(§ 138 SGB IX 2001/§ 221 SGB IX 2018), and also under some regulations of the labor codes such as the paid annual leave(§ BUrlG), company pension(BetrAVG), personal information protection, safety and health protection(§ II Nr ArbSchG), protection against discrimination, and the use of labor court proceedings(§ ArbGG) De lege lata, or at least de lege ferenda16, to protect (some) services provider via platform by characterizing them as ―employee-like persons‖ (the German model) or ―worker‖ (the EU model) and granting them some protections under labor law regulations would be a balanced and pragmatical solution
Another possible way is to characterize the service provider via platform as employee But if this is persuasive, depends on the specific circumstances of the case For example, concerning the case about UBER: UBER Systems Spain and Uber France SAS17 all are classified by ECJ as providing ‗service in the field of transport‘, not relating to one or more information society services Inferred from this the UBER drivers in Spain and France may be treated as the employees of UBER
III Working time
1 The definition of “Working time”
1.1 Taiwan
According to the prevailing opinion18 among scholars and case law in Taiwan19, the working hours include not only the time when the workers actually provide services, but also the time when the workers are under the employers‘ direction and supervision, and always be ready to provide services With regard to the ―on call‖ time, during this period of time a worker has to stay in the dormitory or place designated by the employer especial at night or
15
Concerning the Directive 2008/104, EuGH Urteil 17.11.2016–C-216/15 (Betriebsrat der Ruhrlandklinik/Ruhrlandklinik) EuZW 2017, 68
16
According to Brose,Von Bismarck zu Crowdwork: Über die Reichweite der Sozialversicherungspflicht in der digitalen Arbeitswelt, NZS 2017, 7, 10 ff the case of crowdworker is in general not within the meaning of the ―dependent worker‖ (―abhängig Beschäftigten‖) of section (1) SGB IV so they can not enjoy the benefits and protections of the social welfare code IV(SGB IV)
17
EuGH Urteil 10.4.2018 – C-320/16 (Frankreich/Uber France SAS), EuZW 2018, 378
18 Chiu in Taiwan Labor Law Association, Labor standard Act, A Commentary, 2009, p 361 ff 19
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on holidays; he can eat, drink and sleep freely, has no need to handle daily work, but only to deal with urgent matters Unless the employer actually afford the services, otherwise this inactive period of time is entirely not working time20 But if during the ―on call‖ time an employee has to provide services with almost the same intensity and frequency, then this period of time is entirely the working time21
1.2 A comparative viewpoint
To protect workers‘ health and safety at the EU level, 93/104/EG Working Time Directive and 2003/88/EC Working Time Directive are issued
For the working time regulated in Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, the ECJ22 rules that the ―directive defines working time as any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice Moreover, in the scheme of the directive, it is placed in opposition to rest periods, the two being mutually exclusive.‖(paragraph 47) And the ―time spent on call by doctors in primary health care teams must be regarded in its entirety as working time, and where appropriate as overtime, within the meaning of Directive 93/104 if they are required to be present at the health centre If they must merely be contactable at all times when on call, only time linked to the actual provision of primary care services must be regarded as working time‖ (paragraph 52)
For hours of night work on call in a 'watch' room by teachers in medico-social establishments, according to the French Law, each period of night duty on call is counted as three hours of actual work for the first nine hours and half an hour for each hour in excess of nine hours According the ECJ case law23, such a system of equivalence to statutory working time is incompatible with the aims of Directive 93/104
However, the Directives 93/104 does not apply to the remuneration of workers The said Directives -and Directives 2003/88 also- does not prevent a ―Member State from applying legislation on the remuneration of workers and concerning on-call duties performed by them at the workplace which makes a distinction between the treatment of periods in the course of which work is actually done and those during which no actual work is done, provided that such a system wholly guarantees the practical effect of the rights conferred on workers by the said directives in order to ensure the effective protection of their health and safety.‖24
However if the employee is required after the requirement in a very short time period to reach his place of work, which means very significantly restricting the employee‘s opportunities for other activities, such a stand-by time must be regarded as ‗working time‘ So
20
The Taiwan Supreme Court, 2015 Taishang Tzi No 2505
21 The Taiwan Supreme Court 2017 Taishang Tzi No 824, 1221 and 2533 22
EuGH 03.10.2000 - Rs C 303/98 Simap, in AP Nr zu EWG-Richtlinie Nr 93/104 See also EuGH 9 2003 - Rs C-151/02, Jaeger, NZA 2003, 1019
23
EuGH Urteil vom 12 2005 - C-14/04, Dellas, NZA 2006, 89
24 EuGH 11 01 2007- C-437/05, Vorel 2019.08.07,
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the ―stand-by‖ time which a worker spends at home with the duty to respond to calls from his employer within minutes, very significantly restricting the opportunities for other activities, must be regarded as ‗working time‘.‖25
According to the German Law26 it is distinguished between (1) the working time with regard to the consideration of remunerations, and (2) the working time under the viewpoint of labor protection To the former, remunerations can be freely negotiated (Article 612 of the German Civil Code); the latter, when at a certain time, the labor is usually unable to obtain adequate rest, may be considered as working hours
The period of time for the services to be provided or prepare to be provided by the employee under the supervision of the employer is the working time (including Vollarbeitszeit and Arbeitsbereitschaft) Under the influence of EU case law, the ―on call‖ time (Bereitschaftdienst), which was originally regarded as not working time-unless the employee actually provides services-, is now entirely recognized as the working time under Labor Time Act (ArbZG) Yet lower wages for the―on call‖ time are still possible
In regard to the ―stand by‖ time, during this period of time the employee is required to stay at home or at a location of his own choosing and after the employers‘ requirement to reach his place of work To characterize the ―stand by‖ time, the length of time between the employers‘ requirement and the employee to reach the place of work (Wegezeit) is decisive According the case law, if the employer asks the worker to arrive the place of work within 10 minutes27 or 20 minutes28 after the requirement, so that the employee is usually unable to obtain adequate rest nor freely to engage in social/family activities, this period of time is regarded in its entirety as ―on call‖ time Otherwise -e g within 45 minutes of the requirement to arrive in the place of work- the ―stand by‖ time is regularly not working time
2 Industry 4.0 and working time
If after the work time the employee can choose where he wants to stay and what he wants to do, but he must keep accessible for the employer through Handy or Internet so that he can answer the questions of the employer or customers (―ständige Erreichbarkeit‖), this period of time may be evaluated as ―stand by‖ time29
Another question is, if the employee e.g answers a question of the employer or customers during the said ―stand by‖ time, shall this breaks the requirement ―the eleven consecutive hours of rest period‖ (Art RL 2003/88/EG, § ArbZG Germany), so that the rest period must be computed again? Although it is controversial among the German scholars30, based on the consideration of the principle of proportionality, the negative answer seems to be preferred
By Industry 4.0 and also the request of work-life balance a more flexible working time system shall be beneficial to the employee (e.g to meet the different needs of different stages
25 EuGH 21.2.2018–C-518/15, Matzak, 2019.08.07, http://curia.europa.eu/juris/document/document.jsf?docid=199508&doclang=EN 26
Vgl Baeck/Deutsch, Aufl 2014, ArbZG § Rn 41-47
27
BAG 19.12.1991
28
BAG 31.01.2002, zu B I der Gründe
29 Krause, Herausforderung Digitalisierung der Arbeitswelt und Arbeit 4.0, NZA Beilage 2017, 53, 56 30
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of life) and employer (e.g to meet the needs of customers) But at the other hand, how to protect the employee from almost endlessly available for the employer and/or customers and lead to burn, is a serious question Resolved through worker‘s participation seems pragmatical The German BMW Motor Company had reached an agreement with the labor representative to prohibit employers from calling the workers after work Daimler Company stipulates that emails sent during the off-hours will be automatically cleared31
IV Workers’ participation 1 Taiwan
According to the Regulations for Implementing Labor-Management Meeting, there are three levels of workers‘ participations; by the Labor-Management Meeting, the representatives of employees have the right to be reported, to discuss and suggest The right to co-determination is not stipulated Subjects about the labor conditions and the enhancement of work efficiency shall be discussed (sec 13 II Regulations for Implementing Labor-Management Meeting), matters concerning the improvement of labor conditions, employee welfare and work environment shall be reported (sec 13 I Regulations for Implementing Labor-Management Meeting) Therefore by Industry 4.0 if the employer introduces new type of machines or improving methods of production, the representatives of employees has the right to be reported and to discuss However, when an employer violates the above provisions, the legal effects are not expressly regulated So the Regulations seem more to be persuasive
2 Germany
Pursuant to sec 81 ff Works Constitution Act (BetrVG) the representative of the employee has four levels of participations: the right of information, discussion, suggestion and co-determination For example by introducing new machines and technologies, if the employer and the works council reach an agreement to reconcile their interests in connection with the proposed alterations, the said agreement(the social compensation plan) shall be recorded in writing and signed by the employer and the works council If no agreement is reached, the employer or the works council may apply to the Executive Board of the Federal Employment Agency for mediation If mediation is not applied for or the attempt at mediation is unsuccessful, the employer or the works council may submit the case to the conciliation committee If no agreement is reached on the social compensation plan, the conciliation committee shall make a decision on the drawing up of a social compensation plan The award of the conciliation committee shall take the place of an agreement between the employer and the works council (sec 112 f BetrVG) Generally speaking, by co-determinations the works councils increasingly assume the role of co-managers or even co-innovators32 and in this
31
Ständige Erreichbarkeit: Neue Diskussion entbrannt, 2019.08.07,
https://www.haufe.de/personal/hr-management/staendige-erreichbarkeit-neue-debatte-nach-porsche-vorschlag_80_437058.html
32 Huchler: Mitbestimmung 4.0: Innovation durch Partizipation und basisdemokratische Prozesse im Betrieb?, NZA-Beilage
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respect the decision-making process is no longer the prerogative of management33 Therefore by Industry 4.0 if the employer introduces new type of machines, improving methods of production or concerning its negative influences upon the employee, the works council hat the right to co-determination
V Strike 1 Taiwan
Concerning the legality of the strike, it must be distinguished the economic strike from the unfair labor practice strike According to sec 53 I Act for Settlement of Labor-Management Disputes the legitimate appeals of economic strike are restricted to interest disputes, which denote to the disputes between employers and workers with respect to maintaining or changing the terms and conditions of employment(sec No Act for Settlement of Labor-Management Disputes) One of the prerequisites of the unfair labor practice strike is that the employer commits unfair labor practices (in violation of sec 35 of the Labor Union Act or Article of the Collective Agreement Act)
Related to the legitimate appeals of economic strike, it is unanimously accepted that the legitimate subjects of economic strike are limited to the ones of collective bargaining (―Tarifbezogenheit‖) Based on the idea of collective agreement autonomy (―Tarifvertragsautonomie‖) sec 12 I Collective Agreement Act stipulates a very broad scope of the subjects of collective bargaining Thus the scope of the legitimate appeals of strike seems to see no limitation Here threatens a boundless strike So it is not surprising that a limitation of the subjects of economic strike to the mandatory subjects and an exclusion of permissive and illegal subjects, a doctrine which is generally accepted in US law, is recently propose by a scholar34 Will this theory be accepted in Taiwan, remains to be seen
By introducing new types of machines or improving methods of production, sec.15 Collective Agreement Act stipulates ―It shall not be agreed upon in a collective agreement to restrict an employer from using new type of machines, improving methods of production, or purchasing manufactured or processed goods.‖ Accordingly, an appeal of strike against introducing new types of machines or improving methods of production by Industry 4.0 is per se illegal
2 A comparative viewpoint
Under the German law strikes are seen as a means of reaching collective bargaining, the legitimate subjects of strike are limited to the ones of collective bargaining (―Tarifbezogenheit‖)35
However, if the distinction is to be made between what can be negotiated voluntarily and what can be achieved through strike, is controversial among scholars36 According to the Federal Labor
33
Klebe/Weiss, WORKERS' PARTICIPATION 4.0 - DIGITAL AND GLOBAL? 40 Comp Lab L & Pol'y J, 263, 272
34 Lin, On the legality of strike, https://www.lawbank.com.tw/index.aspx(2019.08.07) 35
Gamillscheg, Kollektives Arbeitsrecht, Band I, 1997, S 1071; ErfK/Linsenmaier, 18 Aufl 2018, GG Art Rn 69, 114(j.m.w.N.)
36
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Court case law,37 the collective bargaining autonomy can‘t mean that all entrepreneurial decisions are legitimate subjects of collective bargaining and/or strike at the same time The industrial action/strike can only intervene where an entrepreneurial decision affects those legal, economic or social interests of the employees Otherwise, the autonomy of the enterprise would be insufficiently respected So the employer can decide on investment, production and distribution, how money and materials are used for what purpose and whether what and where is produced So is a strike against the employer‘s business decision-making itself (e.g to set up a new flight company aboard) is illegal38 On the other hand, a strike only for the extension of the notice period of the dismissal caused by the employer's relocation (―Standortverlagerung‖) and the vocational training subsidy during the unemployment period is legal39
In UK the Trade Union and Labour Relations (Consolidation) Act 1992, sec 178
40defines the scope of ―collective bargaining‖ –and at the same time also the scope of the
protected industrial actions- It seems that the scope of the legitimate appeals of strike in UK subjects to more restrictions as her German counterpart A strike due to the employer‘s business decision-making violates TULRCA 1992, sec 178 and is illegal However, a strike relates to terms and conditions of employment, or allocation of work or the duties of employment which derives from e.g the outsourcing may be legal
Therefore under German and UK law, if the employer introduces new type of machines or improving methods of production by Industry 4.0, the labor union may not strike against such a business decision-making itself However, a strike relates to terms and conditions of employment, or allocation of work or the duties of employment which derives from e.g the outsourcing may be legal
37
BAG Urteil vom 03.04.1990 - AZR 123/89, NZA 1990, 886
38
LAG Hamm Urteil 31 2000 AP GG Art Arbeitskampf Nr 158; LAG Hessen, Urteil 9.2015, NZA 2015, 1337
39
BAG Urteil vom 24.4.2007 – AZR 252/06 – NZA 2007,987
40
TULRCA 1992, sec 178
(1) In this Act ―collective agreement‖ means any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers‘ associations and relating to one or more of the matters specified below; and ―collective bargaining‖ means negotiations relating to or connected with one or more of those matters
(2) The matters referred to above are—
(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;
(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;
(c) allocation of work or the duties of employment between workers or groups of workers; (d) matters of discipline;
(e) a worker‘s membership or non-membership of a trade union; (f) facilities for officials of trade unions; and
https://www.bnext.com.tw/article/49465/foxconn-says-investigating-labor-conditions-at-china-factory-used-for-amazon