日本法上之順法鬥爭法理－以集體拒絕加班和集體休特休為中心

Abstract

從1940年代起，被法律禁止為爭議行為之職業/行業之工會面對經常違法的雇主開始採取「順法鬥爭」。順法鬥爭同時具有遵守法律之外觀以及類似爭議行為之效果，因此引發一疑問：順法鬥爭是否為爭議行為？ 分析日本之相關事件判決和學說討論後發現，在集體拒絕加班之事例中，上述問題通常以勞工是否有加班義務，或集體拒絕加班/休假是否阻礙業務正常營運之方式討論；而在集體請特休假之情形，問題則轉換為，特休假是否得運用於爭議行為，並有完全相反之見解。本文並運用上述日本法理分析臺灣之五個類似順法鬥爭之事件。 本文認為上述討論方式實際上是分別從個體法和集體法觀點審視關鍵問題，而相較之下前者觀點較為可採，但建議進行更多關於爭議行為立法目的之研究，以獲得具說服力的答案。

From 1940s, because of employers’ constant illegal business orders, work-to-rule has been frequently token by unions forbidden or restricted to hold Dispute Activities in Japan. With its appearance of individual worker obeying the law and the effect similar to dispute activities at the same time, a key question of work-to-rule raised: Is it a Dispute Activity? After reviewing court decisions and scholars’ studies in Japan, this thesis concludes that: in cases of refusing to work overtime or on Days Off collectively, the above question is usually discussed in two approaches: to examine if individual union member obligated to such work, and to value if the action impeded the normal business operation. While in the situation of union members taking annual pay leave at the same day, the question is transformed into another one: if such kind of pay leave can be used for Dispute Activities, and the opinions divided. These legal theories are then being applied to analyze five Taiwan cases of work-to-rule. To conclude, this thesis suggests that the discussions mentioned above are actually examining the key question from the viewpoint of “law for individual labor” and “collective employment law” respectively; and the former is more convincing. Nonetheless, it is also proposed that more studies on legislative purpose of Dispute Activities are called for persuasive answer.