- 學位論文
我國大量解僱勞工保護法之解僱協商程序研究—以歐盟法為比較
A study on the negotiation procedure of Act for Worker Protection of Mass Redundancy in Taiwan－comparing with the directive of European Union.
摘要
台灣於90年代面臨工資上漲、生產成本增加等危機，使得資本家將勞力密集型之傳統產業大量外移至大陸與東南亞地區，致使當時台灣社會無預警關廠、歇業與大量解僱勞工所引發之勞資爭議驟增。為回應勞工團體要求立法之呼聲，行政院勞工委員會於2000年6月組成立法小組，開始著手草擬大量解僱勞工保護法之草案，歷經2001年8月經發會內部之討論後，始確立其「程序法」之定位，並於2003年1月13日由立法院二三讀通過，而後於同年2月7日由總統公布三個月後實施。由於大量解僱勞工保護法定位為程序法，其特色即以雇主之「通告義務」與「協商義務」作為規範之重心，除了使勞工得於解僱生效前60日收受資方大量解僱之決定外，勞資雙方得於後續之協商程序中排除第三人之干預而進行談判，並由勞工自行就雇主之經營決定進行干預以保全職位、抑或向雇主爭取多於法定勞動債權之數額。協商程序是法律的程序化之展現，其立意原係透過程序上框架與條件之建立，使社會各系統得於該框架中以自身的邏輯進行整合與協調，而排除法律實質的干預、介入與決定。然大解法施行至今已超過15年，期間歷經數次重大大量解僱案件後，大解法失能的爭議聲浪逐漸擴大，其主要原因在於大解法各程序之規範密度過於鬆散，導致勞雇雙方在通告程序、協商程序之適用上皆疑義叢生，致使勞工未能及時透過協商確認勞雇雙方之法律上權利義務關係，更甚者勞工之勞動契約業已終止，然勞雇雙方仍未就解僱計畫書達成協議。因此在通告程序、協商程序之進行均流於形式之下，大量解僱勞工保護法似乎並不存在勞工保護之功能。本文即以2016年11月發生之復興航空大量解僱事件為楔子，透過質性訪談研究近年來大量解僱案件，以分析大量解僱勞工保護法程序規範上之缺失。而我國大解法於立法之初既曾以歐盟指令為立法參照之對象，故本文將進一步就歐盟指令、歐盟法院之判決、歐盟會員國之內國法進行分析比較，希冀能從中為我國大解法未竟之處找出得以借鏡之內容。最後將於結論處提出現行法之修正建議，以期健全我國大量解僱協商程序之規範。
並列摘要
In the 1990s, business owners of labor-intensive industries in Taiwan were facing operational crises such as ever-increasing wages and significant rise in production costs. Therefore some of them moved their operations to China and Southeast Asia where there were lower labor costs. As a result, unemployed people were increasing drastically on the labour market.In preventing business owners from closing down companies without prior notification of employees, labour groups earnestly called for the Taiwanese governments to enact legislation that imposing sanctions on employers who closing down companies without abiding by the procedural rules and entitling employees being laid off to practical support. However, after discussions within the Economic Development Committee in August 2001, the Act was confirmed to be drafted as a "Procedural Law", and most of the substantial provisions labour groups aspired to was deleted. In 2003 The Act of the Protection of Employees During Mass Redundancy was enacted on January 13th , and subsequently promulgated on February 7th. According to the Act. When an employer intends to dismiss a certain amount of its Taiwan workforce over a defined period of time, the employer must comply with the procedural provisions, which comprises of two essential procedures——information and negotiation. The main objective of the legal framework is the two parties can reach a consensus preventing damage or potential damage to the rights and interests of employees and moderating the employer's management rights at the same time through the negotiation process without the interference from a third party. In 2016, the TransAsia Airways Board of Directors had passed corporation dissolution without notice on November 22. Since the day, the company's workers' union had been struggling for a better severance package than that stipulated in the Labor Standards Act, as well as compensation for the unexpected layoffs. Nevertheless, the management and the union failed to reach consensus on severance pay and compensation after several rounds of negotiations because the management had no sincerity to negotiate with workers from beginning to end. Afterward, all the employees in TransAsia Airway were redundant before the end of the negotiation procedure. Since then, the Act has been heavily criticized as being useless. The main reasons are that vaguely worded rules of the Act lead to the endless disputes over details of the negotiation process, and only small amount of administrative fines would impose on the employers for non-compliance,it makes employers reluctant to abide by the rules. Therefore the aim of the Act was jeopardised due to the problems mentioned above. The paper forcuses on the negotiation procedure provided for by The Act of the Protection of Employees During Mass Redundancy ,and trys to offer a few sugggesitons on revision with reference to the directive of European Union with a view to improving the framework of the negotitation procedure.