就業年齡歧視法制之探討

A discussion over the age discrimination in the workplace

我國的勞工法規及社會法規中，勞工的權利有部分係以年齡作為標準者。惟似乎更多是以工作年資作為雇主給付責任及社會保險給付的計算基礎者。社會各界一般均未質疑該等規定涉及年齡的直接歧視，惟亦有少數認為工作年資的計算方式構成對於年輕勞工的間接歧視。實務上並未曾出現此類爭議案件。針對就服法第5條第1項的單薄規定觀之，其並未就年齡歧視的實質規定及原理原則等有所規範，此或將影響其防止中高齡勞工就業歧視或促進實質平等的成效。至於就服法第24 條規定，似乎也難以達成促進高齡勞工就業的目標。由於法規的不足，使得中央勞工主管機關及法院分別以函示及裁判的方式，創造就業年齡歧視的類型、態樣、解僱救濟等涉及年齡歧視重大原理原則的規範，即使其用心及成果都值得肯定，仍然難免於法律不明確性及不安定性的疑慮，尤其是就業年齡歧視還涉及例外規定（職業上具決定性的要求、優惠性措施）及複雜的年齡歧視態樣、甚至還有高齡勞工僱用政策落實的問題，必須在法律中予以明定，以符合法律保留原則，並且達到禁止歧視及促進就業的雙贏目的。如以目前勞基法與就服法的規定觀之，在個案處理上，甚且會發生規範價值衝突的問題。亦即：當退休（法有明定）與促進就業（法律政策鼓勵）發生衝突時，究竟應以何者為準？又，當禁止年齡歧視（就服法第5條第1項）與促進高齡勞工就業（就服法第24條第1項）發生衝突時，應以何者為先？為釐清此類基本價值間的先後關係，並且基於社會法治國原則及法律保留原則，立法者似有必要盡速訂定就業年齡歧視的類型／形式、例外、態樣及高齡勞工的僱用規範，以收保護與促進僱用的實效。

In our country, some workers’ rights in labor regulations and social regulations base on the workers’ age. But it seems to be more based on workers’ seniority as measure criterion of employer's liability and social insurance benefits or payment. The workers’ seniority as measure criterion is generally from every side of people not regarded as direct age discrimination, nevertheless, a few people consider this measure criterion as indirect discrimination for younger workers. However, such disputes never happened in our practice. Although age discrimination is prohibited in Article 5 of Employment Service Act, but due to lack of regulation of substantial content and principles concerning age discrimination, it shall have negative influence on the effect of prohibition of discrimination against elderly workers or promote substantive equality between different generations. Even Article 24 of Employment Service Act seems difficult to achieve the goal of promoting employment of elderly workers. Due to lack of regulations, so that the central labor authorities and courts respectively in way of explanations and decisions to create fundamental principles of age discrimination in workplace, such as the types or forms of age discrimination in employment, dismissal relief etc. Even theirs intentions and achievements can be confirmed, it still inevitable results in misgiving of legal uncertainty and stability, especially age discrimination in employment also relates to exceptions (decisive occupational requirement, preferential measures) and complex forms of age discrimination, and even problems relating to the employment policy of elderly workers etc., all those problems must be clearly defined in law in order to comply with the principle of legal reservation, in addition, to reach a win-win goal about the prohibition of discrimination on one hand, and the promotion of employment on the other hand. If we observe the provisions in Labor Standards Act and Employment Service Act, in some cases resolution, it even occurs normative values conflict. That is: When it emerges conflict between (law-regulated) retirement and (just from legal policy sustained) promotion of employment, which one should have prevailed position? Also, if it take place conflict between the prohibition of age discrimination (Article 5 paragraph 1 of Employment Service Act paragraph 1) and the promotion of employment of elderly workers (Article 24 paragraph 1 of Employment Service Act,), which one should be adopted and enforced? In order to clarify the relationship between such basic values on one hand, and to retain the rule of law based on the principles of social and legal principles, it seems legislators should stipulate the types ∕ forms of age discrimination in employment, its exceptions, employment norms of elderly workers as soon as possible, so that the effect of protection and promotion of employment come true.