不當勞動行為責任之歸屬與績效考核不利益待遇之成立－－評行政院勞工委員會102年勞裁字第6號不當勞動行為裁決決定

Comments on the (102) Lao-Su no.6 Decision Rendered by the Council of Labor Affairs

所謂的支配介入係指我國工會法第35條第1項第5款所定之由雇主或代表雇主行使管理權之人所為之不當影響、防礙或限制工會之成立、組織或活動之行為。不過，相對於其他不當勞動行為類型，支配介入之不當勞動行為的態樣極為多樣化且通常係由高層業務主管、代表雇主行使管理權之人、近似代表雇主行使管理權之人、一般員工、其他工會會員甚至是企業外之第三人等特定之個人所進行而未必可以說是雇主之行為。從而，在何種之情形下始得歸責於雇主？又，雖然我國工會法第36條規定了會務假之法律依據，但工會幹部因會務假之故而影響績效考核之結果時，是否亦屬不利益待遇之不當勞動行為？對於本案所涉及之上述問題，本文乃嘗試先整理我國目前之裁決決定與學說發展而突顯本號裁決決定之特徵後，再透過對於日本法上相關問題的介紹與分析，檢視本號裁決決定之妥當性，並作為我國工會法第35條第1項適用之參考，以期有效保障勞工與工會之團結權。

According to Article 35, paragraph 1, sub-paragraph 5 of the Labor Union Act, the so called ＂domination or interference practices＂ refers to an employer or supervisory employees who represent the employer in exercising the managerial authority improperly influence, impede or restrict the establishment, organization or activities of labor union. However, compare with other unfair labor practices, domination or interference practices can be conducted in various forms. The conductors of domination or interference practices are not particularly the employers, it could be a certain person like supervisor, supervisory employee who represent the employer in exercising the managerial authority, a person resembling supervisory employee who represent the employer in exercising the managerial authority, employee, other labor union member, even an external third party. Therefore, under what kind of circumstances should an employer take the responsibilities? Furthermore, based on Article 36 of the Labor Union Act, the cadre members of a labor union are allowed to have official leaves to handle union affairs during their working hours; nevertheless, if the cadre members of a labor union get bad job-performance evaluation by taking official leaves, could we refer this to an unfair labor practice? Now we are going to go through this case by organizing the current decisions on the Unfair Labor Practices in Taiwan and comparing with the development of theory to bring out the feature of this Decision, then examining the adequacy of this Decision by introducing and analyzing the related laws from Japanese Labor Union Act as a reference (for Article 35, paragraph 1, sub-paragraph 5 of the Labor Union Act). By this article, I hope labors and labor unions could know this issue better and improve their solidarity rights.