論罷工糾察界限與糾察手段之合法性

罷工糾察的爭議在我國由來已久，在2011年勞動三法全面修訂（以下稱「現行勞動三法」，2011年修訂前之勞動三法稱「舊勞動三法」），於勞資爭議處理法明文將罷工糾察納入勞資爭議處理法前，社會各界於法無明文「得否」為罷工糾察而質疑其合法性。現行勞資爭議處理法第54條第1項規定：「工會非經會員以直接、無記名投票且經全體過半數同意，不得宣告罷工及設置糾察線。」明白承認罷工糾察在我國爭議行為法制中之地位。

Of the three labor statutes that were amended in 2011, the “Act for Settlement of Labor-Management Disputes” (ASLMD) legitimizes and legalizes picketing in Taiwan. However, the definition and legal boundary of picketing under this act and relevant laws remain vague, leading to controversies in practice. Therefore, by rendering legal scholarship and opinions of practitioners (including German law), the article concludes that picketing is coupled with strikes, rather than a separate union action. Moreover, apart from preventing the provision of labor service, picketing ensures and strengthens strike effectiveness. Regarding the legality of picketing, Article 55(1) of the ASLMD states that “industrial actions shall be undertaken in good faith and on the basis of the principle of the vested rights that shall not be abused”. In other words, if the article is applied in the context of strike picketing, the right to strike is the right to impair the rights of employers. Specifically, when picketing, employers might incur loss of profits and reputation. Moreover, cadres of labor unions might persuade other workers to join the strike, block substitutes, or impair the rights of employers and third parties, all of which might cause damages. Nevertheless, to promote the fairness of picketing, reconciling conflict of interests between parties is crucial. Thus, to evaluate the legality of picketing under Article 55(1) of the ASLMD, we should consider “picketer’s interest” and “employer’s interest, as well as public interest”.