企業併購時商定留用權之勞工權益強化——由ESG觀點出發

Abstract

我國企業併購法第16條明定新舊雇主於併購時得商定留用舊雇主之勞工，未受留用或不同意留用之勞工則由舊雇主終止勞動契約，此即所謂的商定留用權。商定留用權雖然有利於企業調整人員配置，追求併購之經濟效率，惟另一方面亦迫使勞工面臨企業併購時，僅能被動接受新舊雇主留用與否之結果，未能適度保護勞工權益。雖然現行法院實務與學說多意識到此一制度缺陷，試圖從解釋論之途徑加以解決，然而本文認為此等解釋論具有若干疑慮，並且考量過去修法失敗的經驗，若要有效改善勞工被動之處境，應從公司治理之角度尋求有別於目前解釋論之替代方案。 鑒於企業併購涉及許多利害關係人利益，勞工亦為利害關係人之一，本文認為應從企業之立場出發，以企業社會責任與ESG目標作為基礎，尤其著重在ESG風險面向與董事監督義務之交集，從企業風險管理與法令遵循之角度，要求企業決策兼顧利害關係人利益，以彌補現行企業併購法商定留用權對於勞工權益保障不周之缺失。因此，本文參酌國際勞工組織文件與我國自律規範等指引，亦借鏡我國大量解僱勞工保護法之程序規定，提出企業在行使商定留用權時與勞工進行集體協商程序之建議，並以永續報告書、年報等資訊揭露制度作為輔助性措施，期能在現行商定留用權規範下，平衡兼顧企業與勞工雙方之利益。

Article 16 of Taiwan’s Business Mergers and Acquisitions Act provides that during a corporate merger or acquisition, the existing and new employers may negotiate the retention of employees originally hired by the existing employer. Employees not retained or who refuse the continuance of employment will have their employment contracts terminated by the existing employer—this is referred to as “employers’ rights to negotiate continuance of employment.” While this mechanism facilitates workforce reallocation and enhances the economic efficiency of mergers and acquisitions, it also places employees in a vulnerable position, reducing them to passive recipients of retention decisions made solely by employers, with insufficient legal safeguards for their interests. Although a certain number of courts and scholars in Taiwan have recognized the shortcomings of this system and have attempted to address them through interpretive approaches, this thesis contends that such interpretations raise significant concerns. In light of past failed attempts at legislative reform, any effective improvement of employees’ vulnerable position should instead be pursued through alternative frameworks grounded in corporate governance, rather than relying solely on prevailing methods of interpretation. Acknowledging that mergers and acquisitions impact a wide range of stakeholders, including employees, this thesis advocates for a corporate perspective grounded in Corporate Social Responsibility (CSR) and Environmental, Social, and Governance (ESG) principles—especially focusing on the intersection of ESG risk management and directors’ fiduciary duties. From the standpoint of risk management and legal compliance, corporations should be required to consider stakeholders’s interests in decision-making related to negotiations regarding continuance of employment. Drawing on International Labour Organization (ILO) publications, domestic soft law guidelines, and procedural protections under Taiwan’s Act for Worker Protection of Mass Redundancy, this thesis proposes a collective bargaining between the existing employer, the new employer and employees, when the employers exercise their rights to retain employees. Additionally, utilizing sustainability report and annual report disclosures is recommended as supplementary tools to promote transparency and accountability. Ultimately, this thesis seeks to recalibrate the current legal regime to achieve a more equitable balance between corporate efficiency and labors protection.