違法調職之類型與不當勞行為之探討－兼論工會法第35條第1項與第2項之關係

Abstract

調職為企業常見之經營決策，關於調職之合法性，從過去內 政部之五原則，學說強調調職命令之法源基礎、必要性與合 法性原則至權利濫用禁止說，基本上已有審查標準之輪廓。 然而在經營決策所須背後，隱含有其他動機而予調職或為其 他不利益處分處分，也是實務常見調職之爭議，特別是作為 懲戒之處分手段。這些隱藏之動機，如有出於對工會會員之 不利益或對工會組織支配介入之意圖，在 100 年 5 月 1 日勞 動三法修正之前，受到調職或不利益處分之勞工或工會會 員，如欲救濟，無論是救濟手段或是認定類型及其間均甚有 限制，在勞動三法修正建立不當勞行為之裁決機制之後，關 於不利益之不當勞動行為則已擴大保護類型以及救濟手段。 以調職為例，雇主如以對工會會員之不利益或對工會組織支 配介入之意圖而為調職之不利益處分，如有不當勞動行為之 認識或動機，即使外觀上是雇主行使懲戒權限而為之調職處 分，仍可能認定為不當勞動行為，裁決決定書對於雇主之不 利益處分命令是否成立不當勞動行為，指出了「應就該受懲 戒處分之勞工在工會中的地位、參與活動內容、雇主平時對 工會的態度等集體勞動關係的狀況、所為不利之待遇的程 度、時期及理由之重大性等因素加以綜合判斷，特別應以雇 主之處分與過去同種事例之處理方式是否不同，或同種事例 因人而為不同之處分或不為處分，作為重要的判斷基準。因 此，雇主縱使依據勞動契約或工作規則，對於懲戒處分具有 裁量權限，如該懲戒處分依一般社會通念判斷已超過合理之 程度，並綜合上述判斷基準，認為存在不當勞動行為之動機 時，即有構成不當勞動行為之可能。」，對於勞工受到不利 益處分權利義務之保障及團結權之維護，有重大之實益。不 過，實務上難以判斷之雙重動機理論，在裁決決定書雖已提 出本項理論及其判斷基準，但本文認為尚非屬真正之雙重動 機類型。面對僱主一方面存有不當勞動行為之意思，另一方 面雇主所為之處分理由也充分成立之雙重動機，如何取捨與 判斷，應是未來裁決案例在處理不利益不當勞動行為時，必 須思考之重點。

Continuing nature of the labor contract with nature, the contract for the duration of corporate competitive advantage and improve business efficiency, based on business needs and adjust the staff of the job content and workplace, inevitable, such as that workers, once employed, unless otherwise desirable , that is employed only by the initial positions, job content, time and place of work, not the slightest change, business management will enable caught rigid, and thus the doctrine of judicial practice and recognize employers have transferred command of the rights of labor. Since China`s current laws and regulations on the transfer does not, the doctrine of the employer transferred the legal basis for discussion of different have taken general agreement, contract agreement, law and other normative theories, the Court`s judgments must be based in principle to transfer the necessary business and its mobilize a reasonable basis to determine the general content to labor within the Taiwan Ministry of the Interior 74.9.5 No. 328 433, letter reveals the character of the five principles to determine whether the employer as the basis of abuse of rights. Less willing to recognize the doctrine of the importance of these five principles, but their review of the order (whether the contract should be reviewed when the contract prohibits the transfer of another to obtain labor or consent), agreed to the identification, when the review focused on the lack of agreement (whether a business need for transfer is consistent with the labor of looking) and so is the criticism, in addition to the five principles of life, the lack of significant impact on the labor of other indicators, such as family life, it is also the doctrine that the op system of labor standards should only be controversial executive order transferred a \"principle induction \"as the administration of the guidelines, not size-fits-all for one case, according to their specific cases should be in the context of the interests of the measure, the judicial practice in particular the review should establish their own criteria, rather than the lazy extension through the executive the rules. In recent years the court has not cramped like the five principles of the framework of the Ministry of the Interior transferred gradually to establish their own standard of review, such as those imposed in conformity labor contract was to examine the principle of consent, the transfer of labor after commuting, family life, family planning, are also the overall economic and points of consideration for the sum. However, in the transfer of the exterior, go into the reasons for transfer, but can be found for the transfer of real convergence from different causes of common means. Mobilization of labor`s corporate office or position, or in response to field plant expansion, consolidation or migration, or because of changes in corporate business base to mobilize labor, both in the head in response to market competition and changes in organizational restructuring manpower; or for internal management of strategies, such as rotation of different departments to nurture talent, or seek to prevent free people whom are not within the control of the Zang, whether it is why the term motivation and purpose, these measures can be summarized as necessary for the purposes of the transfer based business. Appropriate method of evaluation in addition to the five principles of supra Ministry of the Interior, the labor agreement is obtained (when the treaty of general consent, the transfer time of the express or implied consent), the object of choice (degree of skilled labor experience, single, or bringing their whole family) to give new skills required of staff training, new post of additional expenses (such as commuting costs), provide the necessary assistance to the family life of labor (such as relocation costs) as a result of job changes in the transaction and whether the company`s system and pay equity , are the observed points. Employer without a break above the five principles and associated review points, the vertical due to the need of business to mobilize labor, which may constitute a criminal transfer. The employer`s transfer did not meet the relevant principles, the labor camp in the transfer order, issued after the new breed of premises refused to provide services, resulting in continuous absenteeism, constitute the Labor Standards Law Article 12, paragraph 1, paragraph 6, \"absent without good reason to continue three days, or absenteeism within one month of 六日who \"was greeted immediately dismiss the subject dismiss, refuse to transfer to practical common Typical lead to dismissal disputes. In addition to the need of business to mobilize labor, have no direct relationship with business and labor over individual behavior associated with the transfer. For example, office workers lazy or destructive acts of workplace order of dismissal of the need, based on the principle of last resort, dismissal, the employer changed to the more moderate of the transfer instead of dismissal, there is no lack of practice in this case, the occasion of the transfer of this nature with the assessment of punishment. To transfer as a breach of contract for labor or punish violations of moderate means, according to the dismissal of the principle of last resort, nature has its proper law, but should act according to individual workers is a violation of work rules or labor contract provisions, with reference to illegal circumstances, and in the transfer punishment, dismissal and punishment between, according to the principle of proportionality review, to avoid the transfer to become an employer of labor Siyuan improper punishment and there is danger of abuse of rights. Theory also believe that court for non-monetary business of the disciplinary action should be a comprehensive review of the right to review is in violation of existing laws, abuse of rights, equal treatment, the principles of equivalence. In addition, because the labor unions involved in collective action by the demotion, reduction, transfer, or severance pay, do not give bonuses and other non-interest, is also practical because of the labor of the \"behavior\" caused by transfer of common circumstances. However, their breach of contract or breach of labor laws is subject to punishment of the different transfer, organization of labor union or collective bargaining by whom such \"behavior\" is not illegal, but in practice the constitutional guarantee of freedom of labor alliance to destroy the personality of the employer under the supervision of the command from the property, to collectively restore its integrity of character action. However, transfer of results alone, because it may be necessary or the business of punishment for violations of labor necessary means, are prohibited by the laws of non-operation or management measures to mobilize the employer from the operation of the Department of Labour research needs or necessary and reasonable punishment, or out of control or intervention to suppress the labor for the collective behavior of the motives, legal and illegal motives may cause staggered overlap, \"transfer\" of the results of improper intervention with employers collective action, forming the ambiguity of the relationship, the impact of the and, when the transfer of labor to an employer filed a civil law remedies, may confirm the transfer on the appearance of an effective employment relationship is invalid or deposit to confirm whether the private rights disputes, it is likely that the core issue of transfer or dismissal of improper behavior intervention or control from the employer`s motivation for collective action, Therefore, the law must have a clear specification prohibits an employer the right to intervene or control the exercise of collective labor improper labor practices and expertise of the relief means to prevent the collective rights of labor disputes because of the appearance of private rights and fuzzy. Based on the employer`s business needs or to whom the transfer of the necessary means to punish, and suppress the trade unions or collective action by the transfer, the boundaries of its legal and illegal there is the need to clarify, that is the main object of study in this research. Prohibit employers from the past impede our collective behavior of finite-state-like, the old Trade Union Law, Article 35, paragraph 1 provides that \"the employer or his agent, shall not be held union office workers, refuse to hire or dismissal and other adverse treatment.\" Section 36 provides that \"an employer or his agent, for the workers, not to not to hire any union job conditions.\" unionists fired for engaging in union activities or other interests of the treatment, the employer in addition to violation of relevant provisions of the act constitute a criminal offense under its criminal law at the off, the labor of the administrative remedy is limited to fines a way, on a private right of reply for labor relations is not helpful, and therefore requests the executive relief workers, still have to apply to the court proceedings for judicial relief, the final outcome of the proceedings against the ratio of wins mixed. View of all the world`s major industrial countries to maintain and enhance the working and economic conditions, everyone in the constitutional rank of labor for labor alliance to protect basic rights, and labor allies to protect the basic rights of non-traditional basic rights such as the defense is only against the basic rights of national, but also because the individual`s labor force by collective alliance against the same employer for the constitutional rights of private, in order to have full access to the collective security alliance with the all-around play, the league has a dual nature of freedom-oriented, that is the nature of the individual personal rights ( Individuelle Koalitionsfreiheit) and the collective nature of the collective rights (Kollektive Koalitionsfreiheit), composed of the former to protect workers, the freedom to join trade unions, trade unions retain union membership and participation in group activities is subject to protection; which guarantee the existence of union status (Bestandsgarantie) from arbitrary state The restrictions and the free exercise of trade union`s activities (Bestätigungsgarantie) such as labor or economic conditions to achieve the maintenance or upgrade to collective bargaining, and to make representations to the dispute quickly when necessary, to exercise the right to free state and the employer`s improper intervention and control. Based on this, China`s labor authorities since 2001, the Executive Yuan Council of Labor Affairs, 2002, 2007, 2008 and 2009, gradually raised the collective agreement law, the Labour Dispute Resolution Act and the draft amendments to the Trade Union Law, the Legislative Yuan, respectively, collective agreement through the 2008 Act, 2009 Labour Dispute Resolution Act and the Trade Unions Act of 2010, three methods on May 1, 2011 implementation. Three methods by op, the alliance of labor rights in particular, individual form or join labor unions, trade unions retain union membership and participation in group activities are subject to protection, the employer or on behalf of an employer shall not exercise the management rights for the ILO trade union, trade union, participation in union activities or holding trade union office, and refused to hiring, firing, demotion, salary reduction or other adverse treatment (Article 35 of the Trade Union Law No. 1), we had to when the impact of trade unions impede or restrict the establishment, organization or activities, such as encouraging from the union, union intervention in the internal elections or personnel, conference refused to give false or differential treatment of self-control involved in the operation of trade unions, employers and employees also should be the principle of good faith negotiations for the collective agreement; proposed collective agreement for the other party The consultation, without justification, shall not refuse (Collective Agreement Law Article 6, paragraph 1). An employer who contravenes the foregoing, the Labour Dispute Resolution Act of labor may, in accordance improper labor practices to the arbitration panel for a ruling, if the employer`s actions constitute misconduct by the arbitration panel ruling labor practices, there will be the bottom three penalties: first, for violation of Article 35 of the Trade Union Law Collective Agreement No. 1 or Section 6, paragraph 1 punishable by fines. Second, where the award of the Commission make a party for a certain act or omission, the employer Weiyi award decision for a certain period set by the act or omission is punishable by fines. Third, that within a time limit, the session period are not corrected, per-consecutive penalties. In addition, the labor ruling request does not involve private rights may include matters of controversy and disputes involving private rights, such as the former involved the establishment of trade unions or the election, the latter example, the labor participation in union activities to be transferred or dismissed. For disputes involving private rights, the Trade Union Law Article 35, paragraph 2 provides that \"an employer or on behalf of an employer to exercise management rights of the people, to whom the provisions of the preceding paragraph dismissal, demotion or salary reduction were invalid,\" it is the labor involved in the exercise of collective behavior individual rights or collective rights and therefore do not benefit by treatment, in addition to the employer`s actions constitute misconduct and subject to punishment, whom they fired, demotion or salary reduction is not valid. However, for workers, a confirmed invalid transfer or dismissal is void of beneficial non-cutting employers are fined, but also because private rights on how to get back. The labor theory of transfer or dismissal due to disputes involving private rights ruling should be brought to the Trade Union Law article 35, paragraph 1 or paragraph 2, based on whether the two are entirely different and so controversial. Also, labor only Article 35, paragraph 1, filed a ruling, the ruling identified as improper labor practices, may not make a party replies before posting or replying to an employment relationship of the state of the Labour Dispute Resolution Act article 51, paragraph 2, \"a certain the act or omission \"of the state sample. Ruling system as a result of our new system, ordered the parties to some of the acts or omissions of the state-like, to be established, also the second focus of this study. Finally, labor force participation is not suffered by the interests of collective action treatment, transfer or continuation of the dismissal of state for the common kind, and then transferred business may be due to violations of the labor required or necessary means of punishment, so how Distinction from employers to transfer workers operation of the punishment to be reasonable or necessary, or out of control, suppression of labor for the collective behavior of the motive, is awaiting for a lot of observation, only way to examine whether the intervention or control the transfer of trade union behavior motivation. For example, the need of business enterprise based on the mobilization of labor`s place of work, usually of expansion, relocation, downsizing of the facts or plan, or a fixed pattern and methods of transfer, and job and wage labor is likely to cf original working conditions, rise or fall, should be transferred by non-Yigai demotion or pay for; In addition, such as plant expansion, to mobilize the occasion of the original employment of labor, may be accompanied by the recruitment of new workers, a group of personnel policies, but should be non-specific, single of the workers to mobilize their place of work; the other, before and after the mobilization of workers in the transfer, whether there has been controversy as trade union cadres, or participate in sexual behavior, time continuation, both observation points. Improper transfer of labor practices case, can not be transferred because the final result is attributed to transfer the five principles of the review, the labor employed by the same company from the process of comprehensive evaluation of his career, but should not be ignored for the case of the Department. Which paper is intended to May 1, 2011 and became operational decisions have so far been published decision analysis improper labor practices by the ruling of the illegal transfer, their characteristics and relationship with the legal provisions.