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1 Q 有關中研院的休假規定, 得否到院即核給特別休假? What leave are Academia Sinica employees entitled to? Is it possible for Academia Sinica to have leave provisions for the employees as soon as they arrive at the Academy? A 一本院約聘僱人員特別休假規定, 聘僱人員至年終連續服務滿 1 年者, 第 2 年起, 每年應給慰勞假 7 日 ; 服務滿 3 年者, 第 4 年起, 每年應給慰勞假 14 日 ; 滿 6 年者, 第 7 年起, 每年應給慰勞假 21 日 ; 滿 9 年者, 第 10 年起, 每年應給慰勞假 28 日 ; 滿 14 年者, 第 15 年起, 每年應給慰勞假 30 日初聘僱人員於 2 月以後到職者, 得按當月至年終之在職月數比率, 於次年 1 月起核給慰勞假適用勞基法後, 因本院現行規定較優, 仍予保留二除上開特休別休假係規定到職達一定期間方得享有之權益外, 另事假產前假娩假喪假亦均優於勞基法規定, 又約聘僱人員每年度有 14 日事假及 30 日病假, 以上均為到職即享有之權益 1. The Academy s policy on special leave for contract employees is as follows: Those who have served a complete fiscal year, are entitled to 7 days of special leave from the 2 nd year; Those who have served for 3 fiscal years are entitled to 14 days of special leave from the 4th year; Those who have served for 6 fiscal years are entitled to 21 days of special leave from the 7th year; Those who have served for 9 fiscal years are entitled to 28 days of special leave from the 10 th year; Those who have served 14 fiscal years are entitled to 30 days of special leave from the 15 th year. For those who take up a position at Academia Sinica after February in any year, the length of special leave will be given in proportion with actual appointment time and be effective from the next January. Since the regulations on special leave adopted by the Academia Sinica contain more favorable terms than those provided in the Labor Standards Act, they are preserved. 2. In addition to the above-mentioned special leave, the Academia Sinica s regulations governing personal leave, pre-maternity leave, maternity leave and funeral leave are 1

2 also more favorable than those provided in the Act. Plus, contract employees are eligible to 14 days of personal leave and 30 days of sick leave. These benefits are available to contract employees as soon as they arrive at the Academy. 勞基法退休的規定, 訂有工作年資限制, 相對於本國籍人士並不受該限制, 如何適用與本國籍人士相同的規定? The Labor Standards Act stipulates some limitations on the seniority, but domestic employees are excluded from the limitations. How can a foreign employee become eligible for the same terms that apply to domestic employees? 倘中研院無法排除適用勞基法, 為何在沒有儘早通知外籍人士這些改變? Why was there no prior notice to the foreigners about the changes if the Academy could not be excluded from the application of the Labor Standards Act? 一本國籍人員適用勞工退休金條例者, 依勞工退休金條例規定, 請領退休金須年滿 60 歲始得請領相較於外國籍人員得請領退休金之條件, 依勞基法規定為 :( 一 ) 工作滿 10 年, 年滿 60 歲 ( 二 ) 工作滿 15 年, 年滿 55 歲 ( 三 ) 工作滿 25 年因適用法規不同, 關係著請領要件亦有所不同兩者相較, 僅係規定不同, 本國籍人員並無較優之情形二另依國籍法規定, 外國籍人員如歸化者, 即可成為本國籍人員, 即得與本國籍人員適用相同之規定 1. Domestic employees are subject to the Labor Pension Act, and retirement pension can be claimed when they reach the age of 60. Foreign employees are subject to the Labor Standards Act, and retirement payment can be claimed when: (1) the employee attains the age of 60 and has worked for 10 years; (2) the employee attains the age of 55 and has worked for 15 years; (3) the employee has worked for more than 25 years. Compare the two Acts, only the regulations are different, domestic employees are not eligible for more benefits. 2. According to the Nationality Act, foreign nationals who become naturalized Taiwanese citizens are subject to the Acts which apply to domestic employees. 一勞委會公告臨時人員自 97 年 1 月 1 日起適用勞基法, 因本院係學術研究機關, 性質特殊, 與其他適用勞基法之單位迥異, 適用勞基法確有窒礙, 本院用盡一切管道及方法爭取排除適用勞基法, 但均未獲同意二然而這是政府的勞工政策, 在積極爭取排除適用勞基法的同時, 為免法律關係久懸不決, 本院於今 (98) 年 4 月同意依勞委會規定溯自 97 年 1 月 1 日起適用勞基法, 並著手進行適用勞基法之相關規定與措施為 2

3 增進院內適用勞基法人員及兼辦人事業務人員對於勞基法的瞭解, 本院人事室先後於 98 年 5 月 6 日 98 年 5 月 20 日 98 年 5 月 21 日 98 年 5 月 22 日辦理 4 個場次的勞基法宣導會 ( 其中 3 場係由適用勞基法人員參加, 各場次均有外國籍約聘人員參加, 另 1 場係由兼辦人事會計出納人員參加, 各兼辦人事可向該單位同仁宣導 ), 會中除了勞基法相關權益外, 亦有針對其退休權益詳加說明 1. According to the Council of Labor Affairs announcement, the Labor Standards Act started to apply to the Academy s contract employees who are under non-personnel fees on January 1, The Academy has a very different nature from other organizations that fit the Labor Standards Act, so the Academy is very aware of the hardship caused by adopting the Act. The Academy had made every possible efforts to exclude itself from the reign of the Act. However, the petition was rejected multiple times by the Council of Labor Affairs; even the ROC President could not help to push our petition through. 2. However, the law is law. To avoid the suspension of legal relation, the Academy finally agreed to adopt the Act commencing from January 1, 2008 and started to prepare all the relevant regulations and measures of the Act. To improve staff and personnel clerks understanding of the Act, Personnel Office has held four seminars respectively on May 6, 20, 21 and 22, 2009 (three of them were held for staff who are subject to the Act, and foreign contract-based staff could be found at each of the seminars. One was held for personnel, accounting clerks and cashiers. Personnel clerks could explain to the staff in the unit). During the seminars, all the relevant rights and benefits concerning the Act and the retirement benefits were explained very clearly. 退休金以基數來計算, 請問何謂基數? Retirement payment is 有關勞基法規定之退休金基數計算標準係指核准退休時一個月平均工資, 至於平均工資, 係指 : 計算事由發生之當日前六個月內所得工資總額除以該期間之總日數所得之金 3

4 calculated using base units, what is a base unit? 在中研院工作未滿十年的博士後人員, 可否請領退休金? 博士後人員如果在台灣工作滿十年, 但並非是一直持續在中研院工作, 可否領取退休金? Are Post Doctorial Fellows who do not complete 10 years of service at Academia Sinica eligible for retirement payments? Are Post Doctorial Fellows who complete 10 years of service in Taiwan but not continually at Academia Sinica eligible for retirement payments? 額 The base unit for payment of retirement benefits is a standard measure which denotes the average monthly wage received by a particular employee at the time the application for retirement is approved. Average wage means the figure arrived at by taking the total wages for the six months preceding the day on which an event requiring that a computation be made occurs, divided by the total number of days in that period. 一請領退休金之條件為 : ( 一 ) 自願退休 : 年資滿 25 年年資滿 15 年年滿 55 歲或年資滿 10 年年滿 60 歲者 ( 二 ) 機關得強制其退休 : 年滿 65 歲者二勞基法規定工作年資係以受雇於相同的雇主為限, 因此, 須符合條件並於本院辦理退休者, 即可依規定發給退休金於本院工作未滿十年或並非持續在本院工作者, 是無法請領退休金的 1. The conditions for claiming retirement pension are: (1) Voluntary retirement: has worked for 25 years; Or attains the age of 55 and has worked for 15 years; Or attains the age of 60 and has worked for 10 years. (2) Mandatory retirement: Attains the age of According to the Labor Standards Act, the calculation for retirement payments is limited to the same employer. Employees who meet the requirements and apply for retirement at the Academy will receive retirement pension. Employees who have worked less than 10 years or do not work continually at Academia Sinica cannot apply for retirement pension. 同樣領取國科會的經費, 為何在大學的年資不能併計? If both the university and the Academy are receiving the fund from the NSC, then why cannot the years of service at other university be accumulated into the seniority? 勞基法規定工作年資係以受雇於相同的雇主為限, 與補助經費來源無涉, 大學的工作係大學所簽訂的勞動契約, 雇主並非本院, 工作年資不能併計至於國科會, 僅係提供經費的單位, 並非勞基法所稱雇主 According to the Labor Standards Act, the calculation of the seniority of an employee is limited to the same employer. It is nothing to do with the funding source. When working in a university, the employee signs a labor contract with the 4

5 university. The employer is the university, not the Academy. Thus, the years of service cannot be accumulated into the seniority. The NSC is a funding resource, not an employer referred to in the Act. 離職儲金業於 97 年 1 月 1 日起截止辦理, 但於 97 年 1 月至 98 年 4 月離職的人領取了全部的離職儲金 ( 包括雇主提撥的 6%), 反之, 迄今仍在院內工作者卻無法領到 ( 公提的 6%)? 為何不讓外籍人士有所選擇? 對於那些未領到離職儲金公提部分的人員是否公允? Regarding the pay-as-you-go contribution benefit scheme, that was terminated on 1 January, 2008: Many people who left between January and April of 2008 received the full amount of money (including the 6% mandatory contribution), but people who are still employed at Academia Sinica will not get the full amount. Why is there no choice for foreign staff? Is this fair for those who will not get the 6% mandatory contribution? 一本院因聘僱人員工作性質特殊, 適用勞基法有窒礙難行之處, 自 97 年 1 月至 98 年 4 月間, 經多次與勞委會協商, 均未獲同意本院得排除適用勞基法期間為免影響外籍同仁權益, 仍比照各機關學校聘僱人員離職儲金給與辦法規定, 由雇主及個人每月各負擔員工月支酬金之 6% 提撥至離職儲金專戶, 其性質屬離職之給與, 須於員工離職時方得結清匯入本人帳戶, 嗣本院 98 年 4 月總辦事處主管會報決議追溯自 97 年 1 月 1 日起適用勞基法, 聘僱人員期間所提撥之公提儲金, 自應納入勞工退休金 ( 本國籍人員 ) 及勞工退休準備金 ( 外國籍人員 ) 帳戶提繳, 以作為員工日後之退休金費用二本院為顧及外籍同仁之短期工作權益, 曾行文勞委會, 期能由外籍聘僱人員自行選擇領回 97 年 1 月至 98 年 4 月之公提儲金, 惟未獲勞委會同意, 本院爰依規定將 97 年 1 月至 98 年 4 月之公提儲金撥入勞工退休金或勞工退休準備金帳戶提繳, 餘自提儲金及 97 年 1 月前之公提儲金皆退還本人帳戶, 其工作年資並自 97 年 1 月 1 日起算至於已離職之人員, 本院嗣後將予以通知, 繳回期間之公提費用, 以納入勞工退休金或勞工退休準備金帳戶, 退休年資並溯自 97 年 1 月 1 日起生效三本院外國籍人員 97 年 1 月至 98 年 4 月之公提儲金, 均依規定全數納入勞工退休準備金提繳, 並於員工成就退休條件時, 依照勞基法第 55 條規定 ( 前 15 年每年發給 2 個月平均工資, 後 15 年滿年發給 1 個月平均工資, 並以最高發給 45 個月平均工資為限 ) 發給退休金, 其退休權益並未因此喪失 1. Academia Sinica is very aware of the hardship in applying 5

6 the Labor Standards Act to its contract employees, so the Academy conducted several negotiations between the Academy and the Council of Labor Affairs from January 2008 to April 2009, asking for exclusion of the Academy from the application of the Labor Standards Act. During the period when the Academy was seeking exclusion from the Act, the pay-as-you-go contribution benefit was still operated pursuant to the previous regulations in order to protect the employees rights and benefits in accordance with Article 5 of Regulations of Pay-as-you-go Contribution Benefit for Personnel Served in all Organizations and Schools under Civil Contractual Relationship, whereby the employee and the Academy contributed 6% respectively to a special account and the whole amount is transferred to the employee s account when he/she resigns. The matter concerning the adoption of the Act for contract employees was proposed at the Conference of Executives in April 2009 for the President s approval of adopting the Act dating back to January 1, Therefore, the mandatory contribution of pay-as-you-go contribution scheme which were contributed from January 1, 2008 to April 30, 2009 for contract employees were contributed to the labor retirement pension (for domestic employees), and the labor retirement reserve fund (for foreign employees). 2. To protect the rights of foreign employees, the Academy submitted an official document to the Council of Labor Affairs asking for permission to allow foreign employees to take back the mandatory pension contributions which were contributed from January 2008 to April The Council refused the permission. Therefore, the mandatory pension contributions paid from January 2008 to April 2009 were transferred to the labor retirement pension (for domestic employees) or the labor reserve fund account (for foreign employees) according to the Act. The voluntary (personal) contributions and the mandatory contributions paid before January 2008 were returned to employees. Number of years of service for retirement is computed starting from January Contract employees who left 6

7 during the period, the Academy will send them a notice trying to get back the mandatory contributions and transfer the money to the labor retirement pension or the labor retirement reserve fund account. Number of years of service for retirement is computed starting from January 1, The total amount of mandatory pension contributions of pay-as-you-go pension scheme which were contributed from January 1, 2008 to April 30, 2009 for foreign employees are now contributed to the labor retirement reserve fund. When an employee meets the retirement requirements, retirement payment can be claimed in accordance with Article 55 of the Act [2 months of average wage shall be paid for each year of service, for each year of service exceeding 15 years 1 month of average wage shall be paid up to a maximum of 45 months of average wage.) 中研院過去簽訂契約時, 何以本國籍員工可選擇勞工退休金或離職儲金, 而外籍人士僅能選擇離職儲金? When we signed employment contracts in the past, why were domestic employees asked to choose between the Labor Standards Act and the Academy s pay-as-you-go contribution benefit system, but foreigners could only choose the Academy s pension system? 本院 97 年 1 月 1 日適用勞基法前, 本國籍人員得選擇勞工退休金或離職儲金, 係依行政院 94 年 5 月 20 日院台勞字第號函以 : 公務機構非依公務人員法制進用之臨時人員, 由用人機關參照勞工退休金條例第 7 條第 2 項自願提撥規定之精神, 自 95 年 1 月 1 日起辦理退休金提繳考量勞工退休金及離職儲金由政府負擔之比例皆為員工月支酬金之 6%, 於不影響同仁權益下, 本院決議得由聘僱人員選擇提繳離職儲金或勞工退休金, 惟外籍人員並不適用勞工退休金條例之規定, 因此逕予提撥離職儲金 Before the adoption of the Act on January 1, 2008, domestic employees could choose between the labor retirement pension and the pay-as-you-go contribution scheme according to the Executive Yuan s No official letter in 2005 stating that temporary employees in civil institutions who are employed by non-civil servant regulations shall start contributing voluntary retirement pension from January 1, 2006, according to Article 7 of the Labor Pension Act. The percentage of the governmental contribution was the same, 6%, either for the labor retirement pension system or in the pay-as-you-go contribution system. To protect domestic employees rights, the Academy decided to allow the contract 7

8 employees to choose between the pay-as-you-go contribution system and the labor retirement pension. Because foreign employees are not subject to the Labor Pension Act, they were only able to follow the pay-as-you-go pension system. 中研院與其他大學的離職儲金規定應該是一樣的, 但為何只有中研院停止離職儲金制? 另國科會費用項下之博士後人員可否排除適用中研院退休金規定? Why do universities not need to suspend the pay-as-you-go contribution benefit but Academia Sinica need to do so? Is it possible for Post Doctorial Fellows who work in Academia Sinica under NSC funding to be excluded from the application of the Labor Standards Act? 一自 97 年 1 月 1 日起本院聘僱人員被行政院公告指定為適用勞基法對象, 行政院國家科學委員會即於 97 年 9 月 15 日來函解釋, 該會核定補助延攬人才之契約關係應由申請機構 ( 即本院 ) 與各受延攬人雙方自行依勞務提供事實之實質關係個案認定依本院現行規定, 本院對渠等具有考核獎懲出勤管理限制兼職等指揮監督權及從屬關係, 應屬勞動關係, 尚難排除勞基法之適用再者, 本院考量如與聘僱人員認定為勞基法所稱之勞雇關係, 則有給予加班費休假代投保險資遣費及提撥退休金等之義務, 如本院與聘僱人員認定非為勞雇關係, 則無須負擔上述任一義務, 本院爰為顧及聘僱人員之權益, 溯自 97 年 1 月 1 日起適用勞基法, 至於其他大學未依勞基法規定認定雙方為勞雇關係者, 則無須受限勞基法規範, 對所屬同仁之權益將難以保障, 且本院適用勞基法, 原優於勞基法之規定均予以保留, 而未優於勞基法之規定, 則按規定辦理, 並無損及同仁權益二勞基法之退休金核發標準 ( 工作年資前 15 年每年給與 2 個月平均工資, 後 15 年每年發給 1 個月平均工資 ) 規定, 對同仁之退休權益甚優於本國人勞工退休金條例規定 ( 合計每年僅發給員工月支薪水之 72%), 惟其領取退休金之資格條件 ( 工作 10 年滿 60 歲工作 15 年滿 55 歲或工作 25 年者 ) 對於短期性工作之外籍同仁確有影響, 本院嗣後將積極請示勞委會, 有關外籍人士之退休規定, 是否仍有改善空間 1. The NSC sent an official letter to Academia Sinica on September 15, 2008, when Academia Sinica agreed to adopt the Labor Standards Act, to request that the Academy define their contractual relation with personnel subsidized 8

9 by the NSC. According to the current regulations adopted by the Academy, review, reward and punishment, and attendance management of employees are managed by the Academy, so the relationship between Academia Sinica and personnel receiving NSC subsidies can be defined as a labor relation. Therefore, personnel receiving subsidies from the NSC cannot be excluded from the application of the Act. When the relation between the Academy and the contract employees is defined as a labor relation, then the Academy is responsible for the overtime pay, vacations, insurance, severance pay and retirement payment. If the relation was defined as a non-labor relation, then the Academy would not be responsible for any of those benefits. To protect the employees benefits and rights, the Academy agreed to follow the Act from January 1, Personnel at universities that did not define their relation as a labor relation shall not be subject to the Act, and their employees rights will not be protected well. 2. The regulations governing the standards of paying retirement payments in the Labor Standards Act (2 months of average wage shall be paid for each year of service, provided that each year of service exceeding 15 years shall be entitled to 1 month of average wage) are more favorable than those provided in the Labor Pension Act for domestic employees (only receive 72% of monthly wage per year). We understand that eligibility for retirement payments could cause problems for short-term foreign employees. The Academy will ask the Council of Labor Affairs if there can be any improvements made to foreign employees retirement arrangements. 9

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