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  • Interpretation
  • No.270
  • Date
  • 1990/12/07
  • Issue
    • Are the regulations governing classification and retirement age standards for employees of public enterprises overseen by the Ministry of Economic Affairs unconstitutional?
  • Holding
    •        According to Article 33 of the Public Functionaries Appointment Act, appointments of public enterprise employees are governed by other laws.  Prior to the enactment of the aforementioned Act, Article 2 of the Enforcement Rules of the Act stipulated that employees of public enterprises are not subject to the retirement regulations applicable to public functionaries.  The Executive Yuan*s proclamation of the Rules Governing the Retirement, Pension and Severance of Employees of Public Enterprises Overseen by the Ministry of Economic Affairs on January 23, 1981, specified in Paragraph 2 of Article 17 the regulations governing classification and retirement age standards for the aforementioned public enterprise employees. Until a law exclusively governing appointment and retirement matters of these employees is enacted, the Executive Yuan*s rules shall apply.  These rules are consistent with the Constitution insofar as they encourage the turnover and rationalization of public enterprises overseen by the Ministry of Economic Affairs.  However, the appointment and retirement of public enterprise employees, as well as their related rights and duties, shall be governed by other laws.  
      
  • Reasoning
    •        Article 144 of the Constitution describes public enterprises and other monopolistic enterprises as largely state-owned entities, which may also be privately owned if legally permitted.  However, the Constitution does not specify whether the appointment and retirement rules applicable to public functionaries also apply to employees of public enterprises.  Thus, the legislature may promulgate laws in this domain, provided that the spirit of the Constitution is not violated.  
      
    •        Article 2 of the Public Functionaries Retirement Act stipulates that: "The term ‘public functionaries’ mentioned in this Law refers to currently employed persons legally appointed in accordance with the public functionaries appointment laws." Additionally, Article 2 of the Enforcement Rules of the Public Functionaries Retirement Act stipulates the following: "The term ‘public functionaries appointment laws’ mentioned in Article 2 of the Act refers to the rules set by the Ministry of Personnel for purposes of qualifications, review and registration." Lastly, Article 33 of the Public Functionaries Appointment Act clearly stipulates that appointments of public enterprise employees are governed by other laws.  From the aforementioned laws, it is clear that before a suitable appointment law is enacted, the procedures for retirement for public functionaries may not be applied to employees of public enterprises.  Article 84 of the Labor Standards Act specifies that "for public functionaries who concurrently are also classified as being workers, issues pertaining to appointments, wages, rewards, retirement, survivor relief, and insurance (including workplace accident coverage) shall be governed by the public functionaries regulations".  However, all other classes of laborers not subject to the above law shall refer to relevant regulations.  Until the enactment of any relevant laws regulating matters of appointment and retirement for employees of public enterprises, the wording "shall be governed by public functionaries regulations" shall refer solely to those regulations applicable explicitly to public functionaries.   Paragraph 2, Article 17, of the Rules Governing the Retirement, Pension, and Severance for Employees of Public Enterprises Overseen by the Ministry of Economic Affairs stipulates that regulations on standards of classification and retirement age shall be based upon the working and job-related conditions for all enterprises, provided that employees and workers may not retire if under the age of 55 and 50, respectively.  These rules are consistent with the Constitution insofar as they encourage the turnover and rationalization of public enterprises overseen by the Ministry of Economic Affairs.  However, the appointment and retirement of public enterprise employees, as well as their related rights and duties, shall be governed by other laws.
      
    • *Translated by Professor Cing-Kae Chiao
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