公務員兼具勞工身分者休假問題之研究─ 以假日工作適法性為核心;A Study on the Problem of Civil Servants′ Leave with Workers′ Identity - Focusing on the legality of holiday work

NCUIR > College of Hakka Studies > Graduate Institute of Law and Government > Electronic Thesis & Dissertation > Item 987654321/77070

Please use this identifier to cite or link to this item: http://ir.lib.ncu.edu.tw/handle/987654321/77070

Title:	公務員兼具勞工身分者休假問題之研究─ 以假日工作適法性為核心;A Study on the Problem of Civil Servants′ Leave with Workers′ Identity - Focusing on the legality of holiday work
Authors:	張孜安;Chang, Tzu-An
Contributors:	法律與政府研究所
Keywords:	公務員兼具勞工身分者;從優適用;休假制度;工作規則;勞工同意
Date:	2018-06-25
Issue Date:	2018-08-31 13:54:31 (UTC+8)
Publisher:	國立中央大學
Abstract:	集體休假行動係以臺鐵管理局過勞班表造成血汗輪班、以及臺鐵管理局剝奪員工依法享有的例假日，希望藉由此次春節休假提醒鐵路局重視員工輪值造成身體健康受損的重要性，然此一集體休假行動更值得注意的確是公務員兼具勞工身分者國定假日休假權益問題。公務員兼具勞工身分者休假之勞動條件如何適用法令，學說多僅略以「優渥程度比較」、「擇優適用」等語帶過。相關文獻曾認為，勞動基準法第34條以下訂有休息及休假相關規定，並依該法第43條授權訂定勞工請假規則；公務員休假相關規定則見諸公務人員週休二日實施辦法及公務人員請假規則。因而據以認定，就整體條件而言，公務人員請假規則較勞工請假規則為優，另以核假天數為例比較，公務人員請假規則顯優於勞工請假規則，故公務員兼具勞工身分者請假及特別休假事宜，應依公務人員請假規則辦理；另有關例假、休假法規適用，公務員兼具勞工身分者依擇優原則適用公務人員週休二日實施辦法。現行公務員兼具勞工身分者此一特殊身分人員勞動條件法規適用呈現擇優適用公務員法令及勞動基準法之狀態，輿論不僅曾批評「……不可能既想當官享有公務員的福利保障，又同時以普通勞工的身分享有勞工可以在年節依法休假的權利……」，更以「魚與熊掌不可兼得」等語對其做出批判。本研究之目的在於，透過探究公務員及勞工與其雇主間的關係、公務員兼具勞工身分者形成的背景及此類人員假日工作勞動條件之形成方式等，協助公務員兼具勞工身分者釐清休假勞動條件擇優適用基準之建立，以探討臺灣鐵路管理局員工春節休假合法性。另依據勞基法第39條及同法施行細則第34條之3，本文所稱徵得勞工同意於「假日」工作之範疇，將限縮於勞基法第37條國定假日及同法第38條特別休假日。 ;The collective vacations were caused by the shift of sweats caused by the Taiwan Railway Administration’s overworked class schedule and the Taiwan Railway Administration’s deprivation of employees’ legal holidays. He hoped that the Spring Festival holiday would remind the railway bureau to pay attention to the importance of employee turnover to cause health damage. Sex, however, this collective holiday is even more noteworthy. It is indeed the issue of the rights and interests of civil servants who are both workers and workers. The law governing the employment conditions of civil servants and workers who have a leave of absence is subject to the law. The doctrines are often fleshed out with phrases such as “comparison of merits” and “priority”. The relevant literature once considered that the provisions of the rest of the Labor Standards Law and the provisions concerning leave are stipulated in Article 34 of the Labour Standards Law, and the labor leave regulations are authorized under Article 43 of the Labor Law; Staff leave rules. Therefore, it was found that, as a matter of overall conditions, the civil service leave rule is superior to the labor leave request rule, and the comparison of the number of leave days as an example, the civil service leave rule is better than the labor leave rule. Therefore, civil servants who have labor status leave are Special vacations should be handled according to the rules for leave of absence of public servants. In addition, regulations concerning vacation leave and vacation should be applied. The civil servants who have the same status as workers should apply the principle of preferential selection for public servants on weekends and holidays. The current civil servants who are both laborers and workers have a state of affairs applicable to the laws and labor standards laws governing the application of the civil servants′ laws and labor standards. The public opinion has not only criticized that “...it is not possible to consider officials as civil servants’ welfare protection but also to The status of ordinary workers enjoys the right of the workers to take vacations according to law during the year...” and even criticizes them with the words “Can′t have both fish and bear′s paws”. The purpose of this study is to assist civil servants who are both workers and workers to clarify the conditions of leave and work by exploring the relationship between civil servants and workers and their employers, the background of the formation of civil servants with labor status and the formation of holiday workers’ working conditions. The selection of a suitable benchmark was established to explore the legitimacy of the employees of the Taiwan Railway Administration during the Spring Festival vacation. In accordance with Article 39 of the Labor Law and Article 34 of the Regulations on the Implementation of the Law, the term “consultation of labour” as mentioned in this article shall be limited to the National Holidays and the Law of the People’s Republic of China on Article 37 of the Labor Code. 38 special holidays.
Appears in Collections:	[Graduate Institute of Law and Government] Electronic Thesis & Dissertation

Files in This Item:

File	Description	Size	Format
index.html		0Kb	HTML	393	View/Open

社群 sharing

Loading...