商船船員勞動條件實務爭議之研究

相較於一般陸上工作，航運事業與船員工作具有特殊性，包括航運事業涉及國際事務，船員在船上工作期間須遠離陸地、不能返家，海上又具有相當的危險性等，是船員法對於商船船員之僱用、勞動條件與福利等，乃於勞動基準法之外，另設有特別規範。本文針對適用船員法之商船船員，以其過去實務上所發生之勞動條件爭議為中心，包括：船員報酬結構為何、船員相關法定給付如何計算、各個報酬項目及伙食費是否該當於勞動基準法的工資、比例計算有給年休之前提、排假方式、有給年休折算薪津之取得前提與其性質、被迫辭職時之資遣費、調動船員工作是否以合意為必要、工作年資的計算方式等議題，將相關爭點暨法院判決見解作概要之整理與分析，並就部分爭議提出在現行法令下有待釐清的課題。

Compared with general land-based work, the shipping industry and seafarer work have unique characteristics, including the fact that shipping involves international affairs and seafarers must stay away from land, they cannot return home while working on board, and that the sea is quite dangerous. Therefore, the Seafarers Act has special regulations on the employment, working conditions, and welfare of merchant seafarers. If there are specific regulations in the Seafarers Act, those regulations will take precedence, while the Labor Standards Act will apply supplementary to the Seafarers Act.
This article focuses on merchant seafarers subject to the Seafarers Act, focusing on the disputes over labor conditions that have occurred in practice in the past, including: what is the salary structure of seafarers (what is the meaning of“Wage”,“Allowance”, and“Special bonuses”), how to calculate relevant statutory benefits for seafarers, whether various remuneration items and meal allowances are considered wages under the Labor Standards Act, the conditions for granting paid annual leave on a pro-rated basis of service months, the method of arranging leave, the conditions for converting annual leave into monetary compensation and the nature of the monetary compensation, whether a seafarer can request severance pay from the employer when asserting their rights under Article 21 of the Seafarers Act concerning forced resignation, whether crew members' consent is required when implementing transfers, and the method for calculating seafarers' service years (years of service on board) and other issues. This article summarizes and analyzes the relevant disputes and court judgments and raises issues that need to be clarified under the current laws on some disputes.