論企業內合法調動的判斷架構—以日本法為借鏡

Standards of Determining Whether the Transfer of a Business's Employee is Legitimate - a Comparative Study on Legal Framework in Japan

雖然我國對於企業內的合法調動判斷架構早期概以調動五原則進行判斷，在2015年新增勞動基準法第10條之1時，雖然以之作為基礎並加以補充，不過對於其所列之判斷標準的具體操作，因為個案案例事實之不同而未見一致。是以，本文除了整理相關基準的判斷方式外，特別對於同條第5款的考量勞工及其家庭之生活利益加以分析外，也嘗試以日本法作為借鏡，了解在日本法上的處理模式，以作為運作之參考。
再者，本文認為不論調動五原則或是勞動基準法第10條之1的判斷架構均有所不足，是以參酌了日本法上的討論而建議在勞工不主動告知雇主該私人情事，雇主縱使未加以考量其個人生活或家庭生活利益應也不構成權利濫用。此外，雇主因怠於說明調動前後變化之內容以致造成勞工預期之外的不利益時，將可能構成權利濫用而被判斷為調動不合法外，在調動程序的面向上，也應說明該調動的必要性、人選之理由、調動後的工作型態及待遇內容，並致力於取得勞工的同意，以減少勞資爭議的發生。
希望透過本文，能讓勞資雙方更清楚地摸索調動的遊戲規則，並尋求雇主經營需求與勞工保護需求的平衡。

The standards of determining whether the transfer of a business's employee is legitimate (the "Standards") were solely based on the "Five Principles of Employee Transfer" (the "Five Principles") in Taiwan before the amendment of Article 10-1 of the Labor Standards Act (the "LSA") in Taiwan in 2015. Although the Five Principles are still being measured as the supplementation of Article 10-1 of the LSA after the above-mentioned amendment, the definite measurements of the Standards are still inconsistent due to the different facts on variable cases. As a result, this thesis studies and analyzes the relevant standards of employee transfer, and especially focuses on the consideration of the livelihood interests of the employee and his/her family, which is set forth in Subparagraph 5 of Article 10-1 of the LSA. In addition, this thesis also illustrates how the Labor Contract Act is being conducted and the relevant standards of employee transfer in Japan for reference.
Furthermore, this thesis concludes that the Standards are still defective no matter whether they are based on the Five Principles or Article 10-1 of the LSA. Consequently, this thesis suggests that the proposal being discussed under the Labor Contract Act in Japan which concludes that the employer should not constitute an abuse of rights if it doesn't take into account an employee's or his/ her family's livelihood interests due to the fact that the employee didn't disclose such information. Moreover, an employer should respectively illustrate the changes before and after the transfer of its employee (the "Transfer"). Should the employer not illustrate, causing unexpected disadvantages to the employee, the employer may constitute an abuse of rights and the Transfer may be illegal. The employer should also follow the procedure of the Transfer by illustrating the necessity of the Transfer, the reasons for the selection of employees, the type of work and the wages after the Transfer, and other working conditions after the Transfer. Besides, the employer shall also endeavor to obtain the agreements of employees in order to prevent the occurrence of labor disputes.
This thesis hereby clarifies the rules and operation of the Transfer, and looks forward to creating a balance of the needs between employers’businesses and employees’protection.