法院認定待命時間為工作時間之規範－美國判例之啟示

A Review on the Rules of the Compensable Waiting Time Established under the Decisions of Taiwan Courts with the Experience of US Decisions

謝棋楠(Chey-Nan Hsieh)

《中國技術學院學報》 26期 (2004/07) Pp. 47-66

https://doi.org/10.6369/CKCSHYHP.200407.0047

摘要

勞工等待之時間不當然為工作時間，因而勞工等待不當然是工作。我國學界之見解，多認為待命時間為工作時間，雇主有給付工資義務，其乃因待命時間屬於勞工之勞動力置於雇主得處分之狀態。工作時間，一般係指勞工於雇主指揮命令下受拘束之時間，勞工雖處於雇主指揮命令下但未實際服勞務之待命時間，亦應包含工作時間之範圍內。我國法院多年來亦已累積許多審查規範，主要為勞動契約約定內容為事實認定依據、雇主要求勞工待在工作場所，以及勞工之待命有強制性等三個審查之規範，以認定待命時間為工作時間，而應給付工資。但我國法之觀念並不如美國法將待命視為即是工作。

關鍵字

工時 ； 最長工時 ； 待命時間 ； 備勤時間

並列摘要

The waiting time of a worker is not necessarily recognized as his compensable working time. Major Taiwanese authors on this topic admit the standby time should be compensable working time. The idea is that working time is considered as the time a worker controlled and directed under an employer. If a worker turns his labor at employer's disposal it will constitute a working status. Therefore, a standby time is the time a worker is already under his employer's direction but he is inactive. The time spent for standby duty should be included as part of working time. By numerous decisions, Taiwanese courts has established three rules that shall be applicable to tell whether a waiting time is a standby time and compensable from non-working time. The first rule is to learn from the language of employment agreement to decide how the parties want the time to be decided. The second rule is based on the fact whether the employee is retained in the employer's premise. The third rule is based on the fact whether the waiting time is required by the employer. However, in Taiwanese court’s idea, when a worker is simply inactive to engage the waiting is not considered that he is working.

並列關鍵字

Working time ； Maximum working time ； Standby duty time ； On call time.