集體勞動關係法之勞工概念研究－兼論台日外送平台工作者之工會組織爭議問題

Abstract

隨著網際網路及個人通訊設備技術的發展與普及，產生了許多了新形態的商業模式，新興如Uber、外送平台等模式，企業也更容易藉此使用企業外勞動力，同時，此類企業外工作者面臨到勞動保護缺失的問題，在與傳統僱佣模式不同的新型態工作中，面臨工作者無法受到既有的勞動法保護之問題。對此外送員開始凝聚集體力量組織工會法上之工會，但我國對於工會法上勞工是否應與勞動基準法相同尚無定見，本文即以平台外送員是否為工會法上勞工為研究對象。\n而在先進各國中日本在地緣關係與社經文化上與我國較為接近，對於我國勞動法制有深刻的影響，且其有關工會法上勞工之判決與學說討論發展至今有累積相當數量。同時，日本政府自2018年前後即有注意到外送員等個人工作者之勞動問題，直至2021年由日本內閣為首的政府部門提出以勞動法為主、競爭法為輔的法政策規劃。最後，日本也有以平台外送員為主的工會，且相當積極地與外送平台進行協商，可作為工會運動的模範。因此日本法制之經驗應可作為我國的借鏡。\n作為結論，本文認為我國工會應建構獨立的勞工概念，盡可能地讓更多的工作者可以組織工會，並且在我國未來的立法政策上，可以採用日本政府提出之勞動法為主、競爭法為輔的法政策，並制定類似日本下請法，以增加對於個人工作者的工作條件保護。

With the development and popularization of the Internet and personal communication equipment technology, many new business models have emerged. Emerging models such as Uber and delivery platforms have made it easier for companies to use labor outside the company. At the same time, such non-enterprise workers are faced with the problem of lack of labor protection. In the new type of work that is different from the traditional employment model, they are faced with the problem that workers cannot be protected by the existing labor laws. In response, the couriers began to gather collective strength to organize labor unions under the Trade Union Law, but there is still no consensus in Taiwan on whether the labor under the Trade Union Law should be the same as the Labor Standards Law.\nAmong the advanced countries, Japan is relatively close to Taiwan in terms of geographical relations and socio-economic culture, which has a profound impact on Taiwan`s labor law system, and its judgments and theoretical discussions on labor in Trade Union Law have accumulated a considerable amount of development so far.\nAt the same time, the Japanese government has paid attention to the labor problems of individual workers such as delivery workers since around 2018. Until 2021, the government department headed by the Japanese cabinet proposed a legal policy plan with Labor law as the main and Competition law as a supplement. Finally, Japan also has trade unions mainly based on platform delivery workers, and negotiates with delivery platforms quite actively, which can serve as a model for the trade union movement. Therefore, the experience of Japan`s legal system should be used as a reference for Taiwan.\nAs a conclusion, this thesis believes that Taiwan`s trade union law should construct an independent concept of labor, allowing as many workers as possible to organize unions, In Taiwan`s future legislative policies, it is possible to adopt a legal policy based on Labor law and supplemented by Competition law, as proposed by the Japanese government.And formulate a law similar to Japan`s Act against Delay in Payment of Subcontract Proceeds, etc. to Subcontractors to increase the protection of the working conditions of individual workers.