Petitioners Kuo-Yao Hsu and Chia-Wei Chang are field firefighters of Kaohsiung City Government Fire Bureau. They considered it unreasonable that their “24-hour duty followed by 24-hour rest” (hereinafter “one day on, one day off”) duty arrangement exceeded statutory working hours (hereinafter “overtime service”). On October 24, 2012, they petitioned the agency they serve to adjust their duty hours to 8 hours a day (hereinafter “Claim 1”), to render an administrative disposition to promote them to officers (hereinafter “Claim 2”) and to grant overtime pay or allow compensatory leaves (hereinafter “Claim 3”). All of their Claims were denied. The petitioners objected to the decision and petitioned the Civil Service Protection and Training Commission (hereinafter "CSPTC") for deliberation. CSPTC dismissed Claim 1 and Claim 2 and rejected Claim 3 in its CSPTC Deliberation Decision Kung-Shen-Chueh-156 (2013). The petitioners objected to the decision and moved on to file an administrative litigation before the Kaohsiung High Administrative Court, where they raised an additional claim, requesting to include them in the list of candidates for the officer promotion (hereinafter “Claim 4”). The court rejected Claims 1, 2, and 4 in its Order 102-Su-284 (2013) because Claims 1 and 2 were matters ineligible for administrative litigation and the additional Claim 4 was objected by the defendant and was deemed inappropriate by the court. Claim 3 was considered meritless and rejected in Judgement 102-Su-284 (2013). The petitioners objected to both the Order and the Judgment and filed separate appeals to the Supreme Administrative Court, both of which were found meritless and were respectively rejected in Order 103-Tsai-1913 (2014) (hereinafter “Final Order”) and Judgment 103-Pan-724 (2014) (hereinafter “Final Judgment”). The petitioners questioned the constitutionality of Article 77, Paragraph 1, Article 78, and Article 84 of the Civil Service Protection Act amended and promulgated on May 28, 2003 (hereinafter “Protection Act”) and Point 7, Sub-point 3 of the Kaohsiung City Government Fire Bureau Comprehensive Duty Operation Direction that were applied in the Final Order, and Article 23 of the aforesaid Protection Act, Point 4 of the Direction on Granting Fire Department Field Firefighters Overtime Pay and Point 5 and Point 7 of the Direction on Granting Kaohsiung City Government Fire Bureau Field Firefighters Overtime Pay that were applied in the Final Judgment, and filed a petition to this Court for Interpretation. The petition has met the requirements set forth in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act and shall be admitted. In addition, although the petitioners have not petitioned this Court to review the constitutionality of Article 11, Paragraph 2 of the Civil Servant Service Act and Article 4, Paragraph 1 of the Regulations on the Implementation of the Civil Servants’ Two-Day Weekend, these provisions have significant bearing on Point 7, Sub-point 3 of the Kaohsiung City Government Fire Bureau Comprehensive Duty Operation Direction applied in the Final Judgment, and therefore shall be jointly reviewed (see J.Y. Interpretations Nos. 709 and 739). The reasoning of this Interpretation is as follows:
I. The Disputed Provision 1 does not contravene with the constitutional right to judicial remedy.
The right to judicial remedy protected under Article 16 of the Constitution purports that a person has the right to seek judicial remedies when his/her rights are violated. Based on the constitutional principle “where there is a right, there is a remedy,” a person whose right has been violated shall be guaranteed the opportunity to bring his/her case before the court and to receive timely and effective remedy through fair trial conducted in accordance with due process of law. A person shall not be deprived of such right solely by reason of his/her status (see J.Y. Interpretation No. 784).
[4] The Administrative Court Procedure Act amended and promulgated on October 28, 1998 (and entered into effectsince July 1, 2000) specifically stipulates in Article 2 that “unless otherwise prescribed by law, an administrative litigation may be initiated in accordance with this Act for any and all disputes under the public law.” This general provision, in conformity to the constitutional principle “where there is a right, there is a remedy,” guarantees that all public law disputes can be brought before the court in administrative litigations pursuant to the Administrative Court Procedure Act, except when other judicial remedies are prescribed by law. . It should be noted that , administrative litigations stemming from public law disputes are certainly required to meet the elements for different types of administrative litigations as prescribed by the Administrative Court Procedure Act.
While a civil servant has a public law-governed employment relationship with the State, he/she also has the status as a constitutional rights holder, which is not different from an ordinary person. Therefore, based on “where there is a right, there is a remedy” principle enshrined in Article 16 of the Constitution, a person who has public law disputes arising from his/her civil servant status with the agency he/she serves or with the personnel management authority, and considers that his/her rights were unlawfully infringed upon or considers that it is necessary to assert his/her rights, shall certainly be entitled to file an administrative lawsuit corresponding to the nature of the disputes. The judicial remedies for public law disputes a person is guaranteed shall not differ because of his/her civil servant status.
Article 77, Paragraph 1 of the Protection Act (2003) stipulates that “[a] civil servant may file an administrative complaint and/or a review of administrative complaint pursuant to this Act against the management measures or relevant working conditions rendered by the agency he/she serves which he/she considers inappropriate and affect his/her rights or interests.” Article 78 lays down that “[a]n administrative complaint shall be filed to the agency the civil servant serves. The civil servant may file a review of administrative complaint to the CSPTC within 30 days from the next day the reply letter issued by the agency is served if he/she is unsatisfied with such (Paragraph 1). The agency where the civil servant serves or served in the preceding paragraph refers to the agency which is in charge of the management measures or relevant working conditions rendered (Paragraph 2).” (The text, but not the legislative intent, of this provision was amended and promulgated on June 14, 2017.) Article 84 states that “[t]he petition for deliberation procedure stipulated in Articles 26 to 42, Article 43, Paragraph 3, Article 44, Paragraph 4, Articles 46 to 59, Articles 61 to 68, Article 69, Paragraph 1, Article 70, Article 71, Paragraph 2, and Articles 73 to 76 of Chapter III shall apply mutatis mutandis to administrative complaint and review of administrative complaint unless otherwise stipulated in this Chapter.” (Articles 77 and 84 are collectively referred hereinafter as “Concerned Provision 1”). These provisions allows a civil servant to file administrative complaints and/or reviews of administrative complaint against the management measures or relevant working conditions rendered by the agency he/she serves which he/she considers inappropriate and affect his/her rights or interests. According to Article 79 of the same Act, when a civil servant mistakenly files an administrative complaint for a petition for deliberation, the agency with which the administrative complaint is filed shall refer the case to the agency that renders the administrative disposition to deal with it in accordance with the deliberation procedure, and shall notify the civil servant; when a civil servant mistakenly files a review of administrative complaint for a petition for deliberation directly to the CSPTC, the CSPTC shall refer the case to the agency that renders the administrative disposition to deal with it consistent with the deliberation procedure, and shall notify the civil servant. Therefore, the management measures or relevant working conditions rendered that are considered inappropriate as referred to in Article 77, Paragraph 1 of the same Act do not include matters for which the deliberation procedure remedy is available, and since whether a measure without the nature of administrative disposition is inappropriate does not involve the judgement of illegality, it cannot file an administrative lawsuit to courts against the decisions of the administrative complaint and review of administrative complaint. Besides, the aforementioned provision does not prevent a civil servant from seeking remedy through filing an administrative lawsuit corresponding to the nature of the relevant measures when he/she considers his/her rights unlawfully infringed or considers it necessary to assert his/her rights. Hence, the Disputed Provision 1 is not contrary to Article 16 of the Constitution in protecting people’s rights to judicial remedy. On the other hand, different types of administrative litigations have different requirements for the legality of the lawsuit and rights protection, and civil servants shall certainly meet those requirements in order to seek remedy according to the Administrative Court Procedure Act. As for whether the right of a civil servant is unlawfully infringed shall be decided on a case-by-case basis in accordance with the Administrative Court Procedure Act or other relevant laws. Special considerations should be given to the purpose and nature of the measures taken by the administrative agencies and the level of its intervention; when the intervention is obviously minor, it shall not constitute an infringement on individuals’ right. Moreover, the administrative courts shall give proper respect to the judgements made by the administrative agencies based on their expertise and familiarity with their business (see J.Y. Interpretation No. 784).
II. The Disputed Provisions 2 and 3, regarding the failure to establish framework regulations that meet the constitutional protection for the right of holding public offices and the right to health concerning the shift and leave measure of civil servants that serve agencies with special work nature, is unconstitutional.
Article 18 of the Constitution stipulates that people have the right of holding public offices. It is aimed to protect people’s rights in engaging in public affairs and contributing their skills to serve the public (see J.Y. Interpretation No. 546). The State shall establish relevant systems that regulate the exercise of public power and the fulfillment of State’s duty, and shall also attend to the protection of the rights and interests of the civil servants (see J.Y. Interpretation No. 491). Once a person holds the public office, serving his/her duty becomes the core content of the public law-governed employment relationship between the civil servant and the State, which includes matters such as the civil servants’ shift and leave system that are crucial to the civil servant’s rights and interests, and which shall certainly be protected by the right of holding public offices guaranteed by Article 18 of the Constitution.
People’s right to health is a fundamental right protected by Article 22 of the Constitution (see J.Y. Interpretations Nos. 753 and 767). The constitutionally protected right to health aims at protecting the integrity of a person’s physical and psychological functions from arbitral intrusions and imposing a duty on the State to take certain degree of care of the well-being of its people. In formulating the legal system relating to the right to health, the State is obliged to provide minimum protection and to meet the minimum standards required by the right to health. Any legal framework involving the right to health that fails to meet the minimum protection requirements of this right will not be permitted by the Constitution.
The shift and leave system for civil servants is vital to ensuring they can maintain their health through adequate rest, which is covered by the right to health protected under Article 22 of the Constitution. The design of the aforesaid system shall not only meet the purpose and efficency of the administrative organizations, but shall also strive to maintain the well-being of the civil servants, ensuring that their health is not harmed by unbalanced shifts and leaves. Civil servants who serve with the agencies with special work nature, such as the field firefighters, may have a shift and leave system that differs from that of the ordinary civil servants because of the unique nature of their mission; however, such system shall still conform to the minimum requirements in protecting their right to health.
Article 11, Paragraph 2 of the Civil Servant Service Act prescribes that “[c]ivil servants are entitled to two days of regular leave every week. Agencies with special work nature may alternatively adopt rotating shifts/leaves or other flexible measures” (hereinafter the Disputed Provision 2). It expressly allows the agencies with special work nature to implement rotating shifts/leaves or other flexible measures instead of the regular leave system for their civil servants. Paragraph 3 of the same Article authorizes the Executive Yuan, together with the Examination Yuan, to establish the implementation regulation. On October 3, 2000, Executive Yuan and Examination Yuan, by Executive Yuan Order Tai-Jen-Cheng-Kao-Tzu-200810 (2000) and Examination Yuan Order Kao-Tai-Tsu-Erh-Yi-Tzu-09025 (2000), jointly promulgated the Regulations on the Implementation of the Civil Servants’ Two-Day Weekend (hereinafter “Two-Day Weekend Regulation”), of which Article 4, Paragraph 1 stipulates that “[p]ublic transportation, police, fire, coast guard, medical, customs and other agencies/institutions must provide services to the general public all year round and therefore must implement the rotating shift and leave system” (hereinafter “Disputed Provision 3”). The Disputed Provisions 2 and 3 expressly exclude civil servants in agencies with special work nature from the right to enjoy the regular rest time afforded to an ordinary civil servant; however, regarding the rotating shifts and leaves system that shall be implemented by those agencies, the Disputed Provisions fail to lay down framework regulations that indicate the reasonable cap for duty hours, the frequency of shifts and leaves, or the minimum hours of undisrupted rest on duty day, which are crucial to protecting the civil servants’ right of holding public offices and right to health. Compared to ordinary civil servants, the protection for civil servants in those agencies with special work nature has not met the constitutional standards for protecting the right of holding public offices and the right to health. Within this scope, the Disputed Provisions 2 and 3 are inconsistent with the Constitution’s intent to protect the right of holding public offices and the right to health. Considering that there are various types of civil servants with special work nature and their works are different and complex, the relevant authorities shall, within three years from the date of announcement of this Interpretation, review and revise the abovementioned insufficient provisions in line with the intent of this Interpretation, and establish framework regulations that conform to the constitutional requirements for protecting the right of holding public offices and the right to health.
III. The Disputed Provision 4 is not inconsistent with the principle of Gesetzesvorbehalt, or the constitutional protections for the right of holding public offices and the right to health.
Due to the nature of their organizational management and operations, administrative agencies can regulate the allocation of tasks, the manner in which business is conducted and personnel management through their own administrative rules, as long as they do not contravene any laws (see Article 159, Paragraph 2, Subparagraph 1 of the Administrative Procedure Act). However, important matters concerning the right of holding public offices and the right to health, such as the framework regulations for shifts and leaves, shall still be regulated by statutes or regulations specifically authorized by statutes. As previously interpreted and clarified by this Court, determining whether a regulation has exceeded the statutory authorization shall not be limited to the wording of the authorizing provision. Instead, it requires a comprehensive assessment in accordance with the legislative intent and the interrelationship between the statute’s provisions (see J.Y. Interpretations Nos. 612, 651, 676, 734 and 753).
Article 11, Paragraph 1 of the Civil Servant Service Act stipulates that “[c]ivil servants, excluding those with special duties and with permission fromsuperiors, shall work in accordance with the “legally required hours” and shall not arrive late or leave early,” which establishes the general rule and exceptions regarding civil servants’ working hours. The “legally required hours” shall include those laid down in statutes, regulations and administrative directions. The Disputed Provision 2 demands that “[c]ivil servants are entitled to two days of regular leave every week. Agencies with special work nature may alternatively adopt rotating shifts/leaves or other flexible measures,” which sets the general rule and exceptions regarding civil servants’ two-day weekend. Article 2, Paragraph 1 of the Two-Day Weekend Regulation prescribes that “[c]ivil servants’ working hours are: eight hours a day and forty hours a week.” Therefore, statutes and the regulations specifically authorized by them have already specified the implementation of civil servant’s working hours and regular leaves.
The fire departments are responsible for tasks laid down in the Fire Service Act including fire prevention rescue operation, emergency care, and other missions directly related to the safety of people’s lives and property (see Article 1, Paragraph 1 of the Fire Service Act). The nature of field firefighters’ work is especially unique, which cannot be compared to that of ordinary civil servants; therefore, the shift and rest hour arrangements of [the field firefighters] shall be expedient and flexible to accommodate such unique work nature. The “flexible measures” stipulated in the latter part of the Disputed Provision 2, “[a]gencies with special work nature may alternatively adopt rotating shifts/leaves or other flexible measures,” shall include the flexible arrangement of shifts and rest hours. The Disputed Provision 3 prescribes that “[p]ublic transportation, police, fire, coast guard, medical, customs and other agencies/institutions must provide service to the general public all year round and therefore must implement the rotating shift and leave system.” Accordingly, Point 12, Sub-point 2 of the Direction on Implementation of Fire Duty (previously the Temporary Direction on Implementation of Fire Duty), which was amended and promulgated on June 15, 1999 by the National Fire Agency of the Ministry of the Interior through the Ministry of the Interior Letter Tai-Nei-Hsiao- 8875626 (1999), prescribes that “[d]uty hours are as follows: … (2) The working hours for persons on duty are 8 hours a day and 44 hours a week, which may be extended as necessary according to the given circumstances” (thereafter amended and promulgated as 40 hours a week on December 17, 2014). Sub-point 3 stipulates that shifts shall be allocated by the fire departments based on the “manpower of the firefighting force and the nature of the jurisdictions.” Point 20 mandates that fire bureaus of each municipality, county and city government shall establish comprehensive implementation directions for fire duties and submit them to the National Fire Agency of the Ministry of the Interior for record-keeping. Point 7, Sub-point 3 of the Kaohsiung City Government Fire Bureau Comprehensive Duty Implementation Direction (hereinafter the Comprehensive Duty Implementation Direction) established and promulgated in Kaohsiung City Government Fire Bureau Letter Kao-Shih-Hsiao-Fang-Chih-7765 of July 20, 1999 prescribes that “[d]uty hours are as follows: … (3) Based on the needs of the City’s firefighting force and the nature of its jurisdiction, the Bureau adopts a “one day on followed by one day off” rotating shift and leave arrangement for the firefighting units, of which the daily change of shift is at 8 am.” (the title was amended as Kaohsiung City Government Fire Bureau Comprehensive Fire Duty Implementation Direction in the Letter Kao-Shih-Hsiao-Fang-Chih-10331090200 of March 10, 2014. All wordings were left unamended except for the deletion of “of which the daily change of shift is at 8 am.” This provision was moved to Point 6, Sub-point 3) (hereinafter “Disputed Provision 4”). This “one day on, one day off” measure, as the rotating shift and leave arrangement, does not exceed the legislative intent of the aforementioned provisions and therefore is not inconsistent with the Gesetzesvorbehalt principle under Article 23 of the Constitution.
The Disputed Provision 4 specifies that a day on duty is followed by a day off (i.e., adopting the “one day on, one day off” shift and leave measure). This provision is made by the Kaohsiung City Government Fire Bureau to address its shortage of field firefighters and to ensure continuous fire service, taking into account local conditions, such as the nature and environment of its jurisdiction, the priorities of different duties and the size of its firefighting force. Regarding the content of service during a one-day duty, based on the Comprehensive Duty Implementation Direction, there are 8 types of fire-related duties: fire prevention awareness, ready-state duty, fire safety inspection, investigation of water sources, rescue operation drills, on duty shifts, equipment maintenance and standby duty. The duty hours are 24 hours a day, with the graveyard shift from midnight to 6 a.m., the night shift from 6 p.m. to midnight, and the remaining hours constituting the day shift. Moreover, it is required that the duty plans be properly arranged according to the actual needs and that a duty standard be established to enable each service unit to create a daily duty allocation sheet and to implement it on a rotation basis. Attention shall also be given to the following: personnel on duty shall dine within the unit; the types of duties shall be allocated to ensure a balance in workload and activity, allowing for the adjustment of the strength and energy of field firefighters; when there are fewer than 5 people on duty in a unit at night , the night-time shifts may be converted into standby night-time shifts (see Points 6, 7, and 9 of the aforementioned Comprehensive Fire Duty Implementation Direction. The intent of the current Direction remains the same, with the above provisions now in sequence Points 5, 6, and 8 and “standby duty” being removed from Point 5). The aforesaid provisions show that the well-being of field firefighters has been considered and protected in the arrangement of the one-day fire duty. Therefore, the Disputed Provision 4, in its adopting the “one day on, one day off” rotating shift and leave arrangement, is not inconsistent with the Constitution’s protection ofthe right of holding public offices and the right to health. However, before the aforementioned framework regulations are established, the relevant authorities shall, in accordance with the minimum protection of the right to health required by the Constitution, constantly review and improve the matters related to field firefighters’ duty hours and leave arrangements, such as whether duty plans and daily duty allocation provide minimum undisrupted rest hours on duty days that conforms to the protection of the right to health.
IV. The Disputed Provision 5, by failing to establish framework regulations regarding overtime compensation for civil servants in agencies with special work nature, is unconstitutional.
The State is obliged to offer civil servants remunerations to maintain their livings (see J.Y. Interpretations Nos. 575, 605 and 685). The State, according to law, shall pay remunerations for civil servants’ labor, effort and time during legally mandated working hours; if a civil servant is required by a superior to perform duties beyond the legally prescribed working hours, and the work performed is the same as that carried out during regular hours, the State shall provide overtime pay, compensatory leave or other equivalent compensation. Such overtime compensation measures are legally mandated entitlement, not discretionary gratitude, which serve as extensions of civil servants’ right to receive remuneration or regular leaves, and are protected by the rights of holding public offices as stipulated in Article 18 of the Constitution.
Article 23 of the Protection Act stipulating “[w]here a civil servant is required to perform duties not within regular office hours, the government agency he/she serves shall provide him/her with overtime pay, compensatory leaves, rewards or other equivalent compensation” (hereinafter “Disputed Provision 5”) is the general provision regarding overtime compensation for civil servants; this provision focuses on ordinary civil servants in general agencies with clearly defined legally mandated working hours. In contrast, the work patterns of civil servants in agencies with special work nature differs from that of ordinary civil servants. Take the fire department as an example, it provides service to the public year-round (see the Disputed Provision 3), and its daily duty hours are 24 hours, which are divided into three shifts: graveyard shift, night shift and day shift. In addition, due to the diverse and specialized nature of fire duties, field firefighters cannot be compared to ordinary civil servants who work standard eight-hour shifts in regular agencies.. Furthermore, the inclusion of ready-state duty and standby duties (see Point 11, Sub-points 2 and 8 of the Comprehensive Duty Implementation Direction) distinguishes firefighting from ordinary work situation. The Disputed Provision 5 and the relevant laws fail to provide civil servants in agencies with special work nature (e.g., field firefighters) with a special set of necessary and reasonable provisions regarding their duty hours and overtime compensation. This could lead to concerns about these civil servants not receiving appropriate recognition and compensation for their overtime service, potentially impacting their rights of holding public offices. Within these scopes, the Disputed Provision 5 and relevant laws are therefore inconsistent with Article 18 of the Constitution in protecting the people’s right of holding public offices. The relevant authorities shall, within three years from the date of announcement of this Interpretation, review and revise the insufficient provisions in line with the intent of this Interpretation and establish necessary and reasonable framework regulations regarding duty hours and overtime compensation for civil servants who work for agencies with special work nature, such as specifying the shifts and responsibility of a 24-hour duty and providing appropriate evaluation and compensation to those civil servants on standby duty according to the intensity and density of the nature of their service.
V. The relevant authorities shall review the Disputed Provision 6 once the framework regulations for overtime compensation are established.
Point 5 and Point 7 of the Direction on Granting Kaohsiung City Government Fire Bureau Field Firefighters Overtime Pay, issued by the Kaohsiung City Government Fire Bureau on December 27, 2010, which is based on the Direction on the Payment of Overtime Pay for All Agencies issued by the Executive Yuan, and Point 4 of the Direction on Granting Fire Department Field Firefighters Overtime Pay issued through Ministry of the Interior Letter Nei-Shou-Hsiao-0960822033 of July 25, 2007 (the aforementioned Point 4, Point 5 and Point 7 hereinafter collectively “Disputed Provision 6”), respectively sets forth the calculation of overtime work hours, the maximum amount of overtime pay and other rewards given to civil servants who are unable to take compensatory leaves or to receive overtime pay due to the nature of their service. Although the purpose of these provisions is to compensate overtime service of the field firefighters, given that the Disputed Provision 5 and other relevant laws fail to regulate the overtime compensation for field firefighters of agencies with special work nature, whether or not such evaluation or compensation stipulated in the aforementioned Directions on the Payment of Overtime Pay for All Agencies and the Disputed Provision 6 are appropriate should still be reviewed by the relevant authorities once the aforesaid framework regulations for overtime compensation are established.
VI. The Dismissed Part
Lastly, regarding petitioners’ petition for supplemental Interpretation to J.Y. Interpretations Nos. 298 and 323, the sections of both Interpretations addressing civil servants’ right to initiate e litigations and protection of their right to judicial remedy were made in response to the inadequacies of the legal system at the time and their special historical context. With the Protection Act, the Administrative Court Procedure Act and the relevant laws being established, amended and promulgated, the relevant authorities should fulfill their duties concerning the protection of civil servants’ rights and interests, as well as providing judicial remedies, in accordance with the relevant laws and the intent of this Interpretation. Therefore, there is no need to render a supplementary Interpretation; the petition should be dismissed.
As for the other claim made by the petitioners that the Administrative Court (now the Supreme Administrative Court) Precedent 55-Pan-335 (1966) and Article 11, Paragraph 2 of the Police Personnel Management Act are unconstitutional, since the precedent and the provision were not applied in the final decision, they cannot be the subjects of the petition for review. This part of the petition is therefore inconsistent with Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act, and should be dismissed according to Paragraph 3 of the same Article.
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*Translated by Chun-yih CHENG.