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Back外送員提告確認與Foodpanda僱傭關係存在 台北地院判決工會敗訴
外送員提告確認與Foodpanda僱傭關係存在 台北地院判決工會敗訴
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自由时报yesterdayLaw3 min readChinaView translation

外送員提告確認與Foodpanda僱傭關係存在 台北地院判決工會敗訴

台北市全國外送產業工會替3名遭終止合作的外送員爭取權益提起民事訴訟,台北地院認定雙方屬承攬關係,判決工會敗訴。

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台北市全國外送產業工會替3名遭Foodpanda終止合作的外送員爭取勞工權益提起訴訟,主張具僱傭關係。台北地院審理認定,外送員可自由決定上線時間與接單,雙方不具從屬性,判決工會敗訴,可上訴。

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台北市全國外送產業工會替3名遭Foodpanda終止合作的外送員提起民事訴訟,主張確認僱傭關係存在。

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台北市全國外送產業工會替3名遭Foodpanda終止合作的外送員爭取勞工權益,以確認雇傭關係存在為由提起民事訴訟,主張外送員雖簽署承攬契約,但實際上受平台管理、考核及派單制度拘束,應屬勞工身分。台北地方法院認定,3名外送員可自由決定上線時間、工作區域及是否接單等,雙方不具人格、經濟及組織從屬性,雙方應屬承攬關係,雇傭關係不存在,判決工會敗訴。可上訴。

判決指出,3名外送員自2019年間起陸續加入Foodpanda平台,後續於2022年遭公司以「持續未達承攬服務品質且狀況未改善」等由終止合作,3人進一步向公司詢問解僱理由後,均未能獲得正面回應,也未能獲得救濟管道,工會並認為Foodpanda違反勞基法,因此以確認僱傭關係存在為由提起民事訴訟。

工會主張,雖名義上外送員和平台簽署承攬契約,但實際上必須遵守平台規範、接受派單與評分制度,工作時間及接單自由均受到平台演算法支配,並須依平台要求完成取餐、送餐流程,具有人格、經濟及組織從屬性,應受勞基法保障。

Foodpanda主張,外送員可自行決定何時上線、工作多久、是否休息及是否接單,平台沒有權力命令外送員上線工作,即使尖峰時段訂單暴增,也無法強制要求外送員接單。Foodpanda並指出,外送員可同時替其他平台提供服務,平台也無法要求優先承接Foodpanda訂單,雙方關係明顯不同於一般雇主與勞工。

Foodpanda認為,外送員並未領取固定底薪,而是完成一筆訂單取得一筆報酬,屬以勞動成果換取報酬的承攬模式;至於平台要求遵守保溫箱使用、食品衛生、個資保護及校園送餐等規範,主要是配合法令及食安管理需求,並非雇主對勞工的指揮監督。

法院指出,3名外送員與平台簽訂的契約並未約定固定上下班時間或工作地點,外送員可自行選擇上線時段、工作區域、配送路線及工作進度,上線後也可隨時休息或下線,沒有次數或時長限制。

對於工會主張存在排班、分組及強制延長工作時間等制度,法院認為相關證據不足以證明屬於3名外送員契約內容,也無法證明未依排定時段上線會受到懲處,因此難認平台對外送員具有勞工法上指揮監督權。

法院也認為,外送員上線、下線僅代表處於可接單狀態,與一般勞工打卡出勤不同,且上線時間長短與報酬計算無直接關聯;平台亦未限制外送員工作區域,導航路線僅供參考,外送員可自由選擇配送方式,拒絕接單也不會遭受處分。

至於工會主張平台以服務規範管理外送員,主要是配合相關法令及食安管理要求,並非雇主對勞工的管理命令,因此不足以據此認定外送員具有人格從屬性。

法院表示,平台並無升遷、降級或人事考核制度,消費者評價僅影響是否取得額外回饋獎勵,與一般企業員工考績制度有別;外送員也未被納入Foodpanda企業組織體系,因此不具組織從屬性。

法官最後認定,3名外送員與Foodpanda間既不具人格從屬性,也欠缺經濟及組織從屬性,雙方關係應屬承攬而非僱傭關係。既然契約允許任一方終止合作,Foodpanda通知終止契約即生效,因此工會請求確認僱傭關係存在、補發薪資及提繳勞退金等主張均無理由,判決Foodpanda勝訴。全案仍可上訴。

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