加班制度與事實認定之舉證責任分配

A Study on Overtime Regulations and the Allocation of the Burden of Proof Regarding Determination on Working Overtime

我國雇主違反加班制度相關規範比率甚高，相關爭訟亦所在多有。綜觀文獻與實務，加班爭議核心爭點及難處多在於事實之認定。認定加班事實之重要性在於得確知勞工實際工時，並瞭解勞工勞動力有無過度消耗，且為勞工能否據以請求加班費之關鍵。本文以探討加班事實認定之舉證責任分配為中心，先勾勒我國加班制度圖像，研析現行法法定加班程式，並以之作為後續探討舉證責任歸屬之論述基礎。現行加班法制係以雇主要求勞工加班為原則，勞工自行加班為例外。惟無論係在上開何種情形，多數見解咸認加班事實存在與否端視依舉證責任分配而負舉證責任之人能否盡其舉證責任而定。依勞動事件法第38條，雇主倘無法推翻該條之推定，出勤紀錄內所載時間即為勞工工作時間。苟雇主得推翻上開推定，則就雇主證明出勤紀錄所載時間內，部分為勞工休息時間或勞工下班後並未執行職務者，勞工應證明其有實際執行職務；在雇主以勞動契約或工作規則作為證據，證明其未同意勞工加班或勞工加班不具必要性之情形，盱衡雇主知悉勞工有延後下班事實，卻未予制止，仍受領勞工提供勞務之利益，猶否認勞工有加班事實顯不符常理，難認符合經驗法則與立法誡命，應認勞工對於此種悖於常態事實之情形毋庸負舉證責任。

"In Taiwan, the percentage of employers violating overtime regulations is high, causing many lawsuits. The essential controversy and difficulty in overtime disputes lie in identifying facts vital to understanding the employees' actual working hours and being excessively overworked; it is also the key to requesting overtime pay. This article focuses on allocating the burden of proof in determining overtime facts by delineating the scenario of the overtime system in Taiwan and viewing it as the basis for follow-up discussion. Under relevant regulations, in principle, working overtime should be required by the employer, with employees working overtime without being asked as exceptions. In either case, whether the fact of overtime exists depends on whether the person bears the burden of proof under the allocating of the burden of proof can fulfill it. According to Article 38 of the Labor Incident Act, if the employer cannot overturn the presumption of this article, the time written in the attendance records will be considered the employee's working time. However if, the employer overturns the above presumption, for employer proven the time stated in the attendance record was partly the employee's rest period or employees did not work after the regular working time, the employee shall prove he performs his duties; as to the employer who uses the labor contract or work rules as evidence proving he did not agree to the circumstances in which employees does not need to work overtime, given that the employer knew the overtime work and did nothing but enjoying the benefits of employees' labor, yet denied the fact that employees had work overtime, does not match common sense and is against the rules of experience and legislative intent. Therefore, employees do not have to bear the burden of proof for circumstances that do not conform to the general facts."