| Summary: | 碩士 === 國立交通大學 === 科技法律研究所碩士在職專班 === 107 === Act for Settlement of Labor-Management Disputes imposes many requirements and restrictions on strikes, which causes difficulties of starting the strike in both the law and the reality so that many labors and unions turn to take holiday collectively to fulfill their claims. However, there is controversy in theories and judicial practices regarding the difference between taking holiday collectively and strike, as well as the legal nature, legitimacy and exercise mode of taking holiday collectively. This article considers taking holiday collectively and strikes are fundamentally different even though they all include the connotation of not providing labor service. Taking holiday collectively is labors’ legitimate right based on civil law and labor contract while a legitimate strike is an affirmative defense to the violation of the labor contract. The legal evaluation of these two are different, so taking holiday collectively should be excluded from the application of legislation regarding the strike. Thus, when an individual worker takes holiday in accordance with the laws and contracts, the legal nature of his/her behavior should not be turned into an illegal strike only because the majority of workers exercise jointly. In other words, taking holiday collectively could not be interpreted as a strike just because of its collective appearance and then should be regulated by dispute activities chapter of Act for Settlement of Labor-Management Disputes.
To examine the legality of taking national holiday collectively, the first step is to check whether the individual labor has a duty of attendance on the national holiday according to the provisions such as Labor Standards Act and labor contract. If labors do not have the duty of attendance on the national holiday, it is legitimate for labors to plan to refuse to attend the national holiday collectively in the form of union activities. The rights they exercise are the right to unity and action protected by Constitution of the Republic of China. In addition to confirming whether the exercise of the right is in compliance with legal provisions or contractual agreements, it is necessary to examine whether it constitutes abuse of rights. Besides, to guarantee the effectiveness of this kind of union activity, the union members still have to cooperate with the union’s resolutions to take national holiday collectively, like the union decides which union members should take national holidays or which national holidays should be taken. As analyzed above, although taking holiday collectively vacations and dispute activities are all organized by the union, they are different in legal nature. It is because taking holiday collectively is not a dispute activity but a kind of union activity. Therefore, if a union cooperates with members to taking national holidays collectively in the form of union activities, this union cannot exercise positive dispute activities such as setting up picket lines for the purpose of impeding business operations, just like a strike, so we know that taking holiday collectively cannot replace the positive role of strikes.
This article takes the case of Taiwan Railway Union’s collective taking Chinese New Year holiday in 2017 as an example, discussing the legal nature and legitimacy of taking holiday collectively, attempting to clarify its current legal disputes in theories and judicial practices, and hopes to thrash out the legality requirements of union activities of taking holiday collectively.
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