勞動基準法第10條之1增訂後勞工及其家庭生活利益之審酌

Consideration of the Interests of Employee and His or Her Family Life After the Addition of Article 10-1 of the Labor Standards Act

依勞動基準法第10條之1第5款之規定，雇主調動勞工時，應「考量勞工及其家庭之生活利益」，然當勞工及其家庭之生活利益與雇主之經營利益發生衝突時，應如何權衡，實有探討之必要。關於此點，日本雇主之人事調動權受到司法實務之高度肯認，東亞ペイント（Paint）事件最高法院判決中所揭示之「顯著超出通常應忍受程度之不利益」之法律意見，不僅成為各級法院長期加以遵循之重要判斷基準，甚且對我國司法實務造成極大影響。但隨著該國勞動法規之修正，調職命令權利濫用之審查亦有不同之考量與限制。為求勞工家庭生活利益與雇主調職命令權之衡平，本文著眼於勞動基準法第10條之1增訂後，文獻暨司法實務有關勞工及其家庭生活利益之討論，於觀察日本調職法理之演進後，進行比較法之分析。本文以為，有鑑於兩國之勞動社會樣貌等有諸多不同，不宜直接援用日本之判決法理。再者，所謂「考量勞工及其家庭之生活利益」，意指須考量勞工及其家庭生活之「既有生活狀態」；於調職合法性判斷之際，對於勞工既有工作態樣及與其相牽連之既有生活狀態，必須給予最大程度之尊重。

The Labor Standards Act stipulates in Clause 5 of Article 10-1 that an employer transferring an employee must“consider the livelihood interests of the employee and his or her family.”However, when the livelihood interests of the employee and his or her family clash with the employer’s business interests, it becomes necessary to investigate how to strike a balance between these concerns. The recognition of personnel relocation rights for Japanese employers has been accorded significant weight in judicial practice. Not only did the legal opinion of“significant detriment beyond the normal tolerable degree”that was disclosed in the Toa Paint case judgment of the Supreme Court become an important criterion that was long adhered to by courts of all levels, but it also had a profound effect on judicial practice in Taiwan. However, as a result of the revision of labor laws in Japan, the evaluation of violations of the right to transfer is subject to new restrictions and considerations. To strike a balance between the employer’s right to transfer and the livelihood interests of employee and his or her family, this article compares the development of Japanese transfer law with the discourse on the livelihood interests of employee and his or her family in judicial practice and literature subsequent to the addition of Article 10-1 of the Labor Standards Act. In light of the numerous differences between the social and labor environments of the two countries, this article argues that it is inappropriate to apply Japanese judicial principles explicitly. Additionally,“consideration of the livelihood interests of employee and his or her family”stipulates that the worker and their family’s“existing living conditions”must be taken into account. When assessing the legality of a transfer, the worker’s current work patterns and living conditions associated with them must be given the utmost consideration.