團體協約法第13條禁搭便車條款之研究—兼論美國代理工廠條款法理之啟示

本文研究主題為我國2011施行之團體協約法第13條「禁搭便車條款」之制定背景、緣由及適用爭議，並為求更理解納入該條但書之「代理工廠條款」概念，兼論及美國代理工廠條款之源流及發展。本文第二章將探究美國代理工廠條款概念之形成、源起及其於美國勞動法上之法源，藉爬梳歷年美國最高法院之重要判例，勾畫出該條款於美國體現之價值演進。第三章則回歸我國，首先，為使禁搭便車條款於我國誕生之背景更為立體，本章將先概述我國整體集體勞動環境之大環境歷史，範圍上自日殖下自後解嚴。再依序聚焦於我國團體協約法之立法史及禁搭便車條款之出現及演變。接著則探討該條款施行後之適用情形及爭議，先列舉實務上簽訂之團體協約中禁搭便車條款之內容，並針對2016年華航禁搭便車條款事件為較深入之闡述。第四章則對美國代理工廠條款及我國禁搭便車條款就核心爭議、背景制度及法律層次為比較，參照他山之石後，本文將嘗試論述我國禁搭便車條款之合憲性及適用性，並對禁搭便車條款於我國可能遇到之爭議試圖提出解決方式。第五章為結論，本文認為，禁搭便車條款可有效達成避免勞工間不當競爭及促進工會協商權之立法目的，縱其對個別勞工之消極團結權及雇主與個別勞工之契約自由造成干預，亦不違背比例原則，故得通過合憲性檢驗，在我國有其適用性。然本根於我國之反共、戒嚴背景，我國「御用工會」現象嚴重，本文認為，雇主的確可能於與工會簽訂禁搭便車條款後，又與法理上同樣具備協商權之御用工會簽訂具備相同勞動條件之團體協約，以此促成勞工實質「搭便車」，進而打壓實際具備協商動能之工會，遇此情況，可循不當勞動救濟途徑解決。

關鍵字

禁止搭便車條款；代理工廠條款；工會安全條款；團體協約法第13條；國家勞工關係法；團體協約

並列摘要

The “Free-rider Act” proviso set out in Article 13 of the Collective Agreement Act, which has been implemented in Taiwan since 2011, has its origin in the “agency shop clause” in the US union security clause. This study aims to explore the background and reasons behind the enactment of the Free-rider Act in Taiwan as well as the controversy in its application. To better understand the Free-rider Act, the concept of “agency shop clause”in the US is also incorporated with its origin and development discussed in this study. The formation and origin of the agency shop clause as well as its sources in the US Labor Law are discussed in chapter two of this study, where an analysis of major precedents throughout the history of the Supreme Court of the US is made to demonstrate how the significance of the clause has changed over time in the US. The focus will then be shifted back to Taiwan in chapter three. To better perceive the background of the enactment of the Free-rider Act in Taiwan, this chapter starts with an overview of the history and overall background behind the collective labor law covering the Japanese rule to post-Martial Law period, following a more detailed review of the history of the collective agreement laws in Taiwan as well as the formulation and evolution of the Free-rider Act. The application of the Act after enactment and the controversy in application will then be discussed by listing the clause of the Act set out in the collective agreements in practice following a detailed case study on the application of the Act by China Airlines in 2016. In chapter four, a comparison is made between the agency shop clause in the US and the Free-rider Act in Taiwan in terms of their core controversy, the systems behind and the legislative level to which they belong. Based on the comparison, this study not only elaborates on the constitutionality and application of the Free-rider Act in Taiwan, but also proposes solutions to potential controversies in its application. The study concludes in chapter five that the Free-rider Act can effectively meet its purposes of preventing improper competition among labors and promoting right to bargain collectively. Though the Act constitutes intervention in freedom not to associate of individual labor and freedom of contract between employers and individual labor, it does not constitute a breach of proportionality. The Act can therefore be deemed constitutional and applicable in Taiwan. However, against the backdrop of anti-communism and implementation of Martial Law, “company unions” have been rampant in Taiwan. This study found that it is indeed possible for employers, after entering into Free-rider Act with labor unions, to enter into collective agreements of the same labor conditions with company unions, which, in legal theory, are also entitled to the right to bargain collectively. This phenomenon has made labors real “free riders”, and has in turn suppressed labor unions with the real intention to bargain. In such cases, the Dispute Resolution for the Unfair Labor Practices can be a solution.

並列關鍵字

Free-rider Act ； agency shop clause ； union security clause ； Article 13 of the Collective Agreement Act ； National Labor Relations Act ； collective agreement