美國排他性協商代表制之研究及對台灣之啟示

Abstract

本文以民國100年施行之團體協約法第6條第4項條文文字為解釋論之出發點，對照主管機關之函釋與立法者的立法理由後推論，立法者欲課予複數協商當事人推派代表的義務，可能係嘗試採取以美國為代表的排他性協商代表制，但不知基於何種理由，對此制度之導入未堅持到底，而使得團體協約法第6條第4項成為一難以落實的規定。由於立法者的嘗試，引起本文對美國排他性協商代表制之興趣，期能對之為較深入之考察與研究，以明白：為何美國國家勞工關係法會採取排他性協商代表制度？此制度在美國如何發展？美國學者對此制度之評價為何？希望透過本文研究，能了解制度形成的背景與實際運作之利弊，供台灣立法者或政策制定者參考。 為回答上述問題意識，本文於第二章先回顧美國勞資關係的法制史，再聚焦探討排他性協商代表制形成的原因。接著，於第三章以美國聯邦最高法院之判決為本，整理聯邦最高法院對排他性協商代表制之見解，並以美國學者對法院見解的評析，更加深入地探討此制度的利弊得失。觀照美國排他性協商代表制的形成與發展後，本文於第四章先回顧台灣現行法制下的複數工會代表問題，以及勞動三權之理論與實務，以此勾勒台灣集體勞資關係法制的過去與現在，接著透過思想實驗：若美國排他性協商代表制施行於台灣，是否合憲、可行？期能對於台灣在複數協商代表的問題解決上有所啟發。經過上述的研究與思考，本文於第五章作出結論，認為排他性協商代表制並不適合施行在台灣。

Starting from the effort to interpret the Section 4 of the Article 6 of the Collective Agreement Act, which was put into effect in 2011, I then compared the interpretation of the governmental authority and the purpose given by the Legislative Yuan with the text of the statute and I noticed the inconsistency between them. I inferred that the reason why the legislators have urged the party which has more than one representative to select a bargaining representative might be an attempt to adopt the exclusive representation, a unique system that the U.S. would be characterized as the role model.Without knowing a real reason, this attempt failed and the Section 4 of the Article 6 of the Collective Agreement Act turned out to be a mere declaration. But it is this attempt aroused my curiosity about the exclusive representation in the U.S. and led to my more in-depth analysis on exclusive representation. In this thesis, I anticipate to explore the reason why the National Labor Relations Act adopted this unique representation and how it has developed over time. Also, I am eager to understand the comments and analysis of exlcusive representation, which were made by the scholars in the U.S. All in all, I look forward to understanding the practical pros and cons of exclusive representation and hoping this thesis could shed light on Taiwanese legislators and policy makers. To achieve my goal, I reviewed the legal history of the labor relations in the U.S. and then foused on the reason why exclusive representation were brought about in chapter 2 of this thesis. Then I analyzed and summarized the viewpoint of the U.S Supreme Court on exclusive representation based on the decisions made by the U.S. Supreme Court. In chapter 3, to gain insight into the advantages and disadvantages of exclusive representation, I compared the opinions of the U.S. Supreme Court with those comments made by the scholars in the U.S. After reflecting on the formation and development of exclusive representation in the U.S., in chapter 4, I addressed the multiple bargainnig representatives problem which happened in Taiwan and looked back on the thoery and the practice of labor’s fundamental rights in Taiwan so that the legal framework of labor relations in the past and at present could be sketched out. In this way, I could then inquire whether exclusive representation is compatible with the legal environment in Taiwan from a constitutional view and a practical view. From what I have analyzed in this thesis, in chapter 5, I concluded that exclusive representation is not compatible with the Constitution of the Republic of China and other labor relations- related laws.