頁籤選單縮合
| 題 名 | 英國集體協商法制與我相關規定的探討=A Discussion on the Legal Systems of Collective Bargaining in the United Kingdom and Taiwan |
|---|---|
| 作 者 | 王松柏; | 書刊名 | 臺北大學法學論叢 |
| 卷 期 | 55 2004.12[民93.12] |
| 頁 次 | 頁97-174 |
| 分類號 | 556.73 |
| 關鍵詞 | 集體協商權; 團結權; 集體爭議權; 雇主; 勞工; 工會; 契約自由原則; 工會獨立; 工會之承認; 協商單位; The right to collective bargaining; The right to freedom of association; The right to take industrial action; Employers; Workers; Trade unions; The principle of freedom of contract; Trade union independence; Trade union recognition; Bargaining units; |
| 語 文 | 中文(Chinese) |
| 中文摘要 | 集體協商權為勞動三權的中心，團結權與集體爭議權則本身不具特別目的，而是一種手段，其作用在於支撐、落實集體協商權。 要貫徹集體協商權必須建立一套機制以促使雇主願意就工資、工時、休假等重要勞動條件和代表勞動者權益的工會進行談判。此種機制的建立不可避免的會對傳統民事法律所強調的「契約自由原則」造成衝擊。因為欲促成集體協商有必要對雇主自由決定是否要訂約及自由選擇訂約對象的權利予以限制、剝奪。此實非簡單的政策性宣示所能竟其功。 我國自民國二十一年底即施行「團體協約法」，唯該法完全未課予雇主與其員工所屬之工會進行協商的義務。嗣民國九十一年五月行政院勞工委員會草擬之「團體協約法修正草案」才將此一義務其體化，唯草案內容相當簡略，對於如何進行協商未有詳細規定，也未規定在受僱人隸屬於多個工會時，其雇主應與那個工會協商。 相對的，英國集體協商制度的發展已有一百三十餘年的歷史，其間除了在一九七九至一九九七年保守黨執政期間刻意對集體協商制度加以打壓外，歷任政府雖然採行的方式不一，唯在政策上皆有意願促進集體協商制度的成長。本論文即針對英國集體協商制度的演進加以探討，並就現行英國制定法與習慣法上關於工會獨立性的判斷、工會承認的程序、協商單位的決定、雇主與工會的權利義務、工會承認的效果、協商單位的變動、工會承認的終止，及工會承認程序進行期間勞工權利的保護等與「工會承認」攸關的事項詳加介紹，其間並參酌我國相關規定一併討論，期有助於我國學界及實務界對此議題的討論與重視。 |
| 英文摘要 | The right to collective bargaining is at the centre of the so-called workers’ three basic rights. The right to freedom of association and the right to take industrial action have no particular purpose, they are merely means to support and implement the right to collective bargaining. In order to implement the right to collective bargaining, it is of necessity to establish a legal system which can force an unwilling employer to negotiate with his employees’ trade union(s) concerning important terms and conditions of employment such as wage levels, working time, and holidays. To establish such a legal system will inevitably clash with the principle of freedom of contract which has long been rooted in the civil law tradition. It is so because in implementing the right to collective bargaining, an employer’s freedom to conclude a contract and to choose his counterpart(s) will be restricted or even deprived. A mere policy statement is rather inadequate in promoting collective bargaining. In this country, the “Collective Agreements Act” has been in force since 1932. However, the Act does not impose upon the employers the obligation to engage in collective bargaining with their workers’ unions. It was not until May 2002 when the Council of Labour Affairs of the Executive Yuan first purposed such an obligation in its “Collective Agreements (Amendment) Bill”. However, its contents on this matter are relatively brief and do not have detailed rules on how to conduct collective bargaining. There is also no rule on how an employer decides his counterpart(s) of collective bargaining while there are more than one trade union at his workplace. In contrast, a system of collective bargaining has been developed in the United Kingdom for over 130 years. Apart from the period when the last Conservative Government was in office (1979-1997) which took a hostile stand on collective bargaining, successive British governments took different means to promote collective bargaining. The focus of this thesis is to explore the system of collective bargaining in the United Kingdom with detailed discussion on relevant issues such as trade union independence, general statutory union recognition procedure, determining the appropriate bargaining units, the rights and duties of employers and trade unions in recognition procedure, the effects of union recognition, changes affecting bargaining units, derecognition of trade unions, and protection against dismissal or other detriment for acts relating to the recognition procedure. At the meantime, relevant rules of Taiwan on this subject will also be discussed. It is the wish of the author that through this thesis, scholars and practitioners in Taiwan might learn some lessons from the past and current experiences of the United Kingdom and to raise their awareness on this ever interesting subject. |
本系統中英文摘要資訊取自各篇刊載內容。