勞動三法重要變革

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2011 / 6月

文‧陳歆怡



1.工會組織的多樣化

新《工會法》將工會分為企業工會、產業工會與職業工會3種。過去,基層工會只能以同一廠場、同一企業為組織範圍;新法開放產業層級的工會組織,讓同一產業之勞工可以跨廠場、跨地域、跨企業組成「產業工會」,以強化工會實力。

又,新法刪除關於「職業工會」職種的硬性分類標準,開放工會自行決定會員入會資格,也對「工會聯合組織」鬆綁,工會可依需要自由進行結盟。

2.「不當勞動行為」設裁決機制

過去,資方為了打壓工會,常對工會幹部或會員採取調職、減薪甚至解雇處分等「不當勞動行為」;新法明訂雇主若採取「奧步」時,工會可申請中央專責的「不當勞動行為裁決委員會」裁決,裁決成立後,雇主必須回復原狀(例如將革職的幹部復職),還可能被處以高額罰緩。

3. 雇主有誠信協商義務

《團體協約法》的目的在使勞工可以集體與資方締結優於法定標準的勞動契約(例如要求合理的人力編制、逐年調薪等)。然而,由於勞資地位不對等,過去簽訂團體協約的實例極微,即使有,內容也徒具形式。

有鑒於此,新《團體協約法》要求雇主「無正當理由不得拒絕協商」,將雇主的佯裝協商、拖延協商、刻意杯葛協商以及拒絕提供協商必要資料等行為,視為「不當勞動行為」,讓勞資雙方有重回談判桌的機會。

4. 爭議行為的民刑事免責保障

《勞資爭議處理法》在保障勞工發生勞資爭議時,有組織集體行動而不受雇主懲罰的權利。

以往舊制將爭議行為定義為「消極之勞務不給付」,削弱了工會的抗衡力量。舉例而言,原是工會最有力武器與談判籌碼的罷工行為,依前述爭議行為定義只能「乖乖待在家裡不去上班」,若以人牆封鎖工廠出入口、阻擋公司請來的替代人力上工等罷工糾察行為,就有受罰之虞。

新法重新定義爭議行為,改為「勞資爭議當事人為達成其主張,所為之罷工或其他阻礙事業正常運作及與之對抗之行為,」擁有民事和刑事上的免責保障,對提升工會實力有很大意義。

不過,新法也增訂「禁止及限制罷工行業」,如教師、國防人員,其他如自來水、電力、醫院等「具唯一或不可替代性」的特殊行業,勞資雙方必須簽訂「必要服務條款」,才能罷工。       

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EN

Key Changes in the "Three Labor Laws"

Chen Hsin-yi /tr. by Phil Newell


1. Permitting diversification of forms of union organization

The new Labor Union Act divides unions into three types: corporate unions (also referred to in the law as "enterprise unions"), industrial unions, and craft unions. In the past, union organizations at the basic level were limited to a single shop or factory floor. The new act allows formation of unions at the enterprise level (different shop floors in the same firm), industry level (workers from different companies in the same industry), or craft level (persons in the same profession), and also allows formation of single unions across geographic boundaries, which was also forbidden in the past.

2. Creating an arbitration mechanism for "unfair labor practices"

In the past, management often tried to suppress unions by transferring, demoting, or firing union organizers and members. Under the amended Labor Union Act, such actions are defined as "unfair labor practices." The Settlement of Labor Disputes Act expressly provides that if employers resort to such tricks, the union can apply to a special "decision commission" established at the central government level with specific responsibility for such cases. If the union wins the arbitration decision, the employer must restore the previous situation (for example, must rehire a fired worker in his or her original job) and employers can even be fined.

3. Adding a duty for employers to negotiate collective bargaining agreements in good faith

The purpose of the Collective Bargaining Agreement Act is to allow labor to collectively reach a contract with management that is superior to the minimum conditions set by law. However, because the two sides are not in symmetrical positions, there were very few cases in the past of collective bargaining agreements being signed, and even in cases where there were such agreements, they were largely mere formalities.

With this in mind, the amended act states that employers may not refuse to negotiate such an agreement without a legitimate reason. Management tactics such as phony negotiating, delays in negotiation, deliberate boycotting of negotiations, and refusal to provide data essential to negotiations are now clearly defined as being unacceptable. This should create opportunities for bringing labor and management to the negotiating table.

4. Providing guarantees against civil or criminal retribution for job actions

Under the old Settlement of Labor Disputes Act, the only legally protected protest activity was "passive failure to deliver labor services." This greatly weakened the ability of unions to fight capital. For example, strikes, by far the most important bargaining chip unions have, were limited by the above rule to "sitting quietly at home." If workers actually tried to block the entrance to a factory or prevent replacement workers hired by the company from going to work, they could face legal retaliation.

In contrast, under the newly amended law, protected "protest activities" include "a strike or any activities impeding normal business operations or against the business, con-ducted by a party to a labor-management dispute to accomplish the objective underlying its claim." Employers may not claim civil damages for such activities, and so long as there are no criminal acts as defined by the Penal Code, such protest activities are not punishable in any way. These changes should be very significant in making unions much more effective in practice.

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