December 2023
Elva Chuang and Elesha Wang
For the interpretation of the “past membership in any labor union” specified in Article 5, Paragraph 1[1]of the Employment Service Act, the Supreme Administrative Court ruled, in its 112-Shang-315 Decision of October 20, 2023, that employees or job applicants who held labor union membership at the time of or before the occurrence of employment discrimination are deemed to meet the identity qualification of “past membership in any labor union” under this Article. The reasons behind this Decision are briefly introduced below.
Main reasons for this Decision
1. This Decision affirms the ex officio interpretation of the “past membership in any labor union” by the Ministry of Labor.[2]
The interpretation of the “past membership in any labor union” in Article 5, Paragraph 1 of the Employment Service Act by the Ministry of Labor by exercising its authority under the Act to determine the criteria for discrimination emphasizes discrimination based on labor union membership as a reason. This shows that although this Article applies when an employee suffering from the incident of discrimination due to his/her past labor union membership was not a labor union member at the time of discrimination, this provision nevertheless covers the circumstances where a discriminatory act was attributable to the employee’s capacity as a labor union member at that time. The Supreme Administrative Court affirmed that such an interpretation of the Ministry of Labor does not exceed the literary scope of the legal provision and meets the legislative purpose of the law to protect the citizens’ equal employment opportunities.
2. The legislative and policy objectives of Article 5, Paragraph 1 of the Employment Service Act and Article 35, Paragraph 1, Subparagraph 1 of the Labor Union Act are different without a clause concurrence relationship between a special law and a common law.
For the prohibition and adjudication mechanisms against improper labor conduct jointly created under Article 35, Paragraph 1, Subparagraph 1 of the Labor Union Act, Article 30, Paragraph 1 of the Enforcement Rules of the Labor Union Act, and Article 51, Paragraphs 1, 2, and 4 of the Act for Settlement of Labor-Management Disputes, the legislative objectives are to safeguard the solidarity right of workers, the right to collective bargaining, and the collective dispute resolution right, and prevent employers from using their economic advantage position to unduly undermine workers’ exercise of their solidarity right. However, the legislative objective of Article 5, Paragraph 1 of the Employment Service Act is to prevent employers from subjecting job applicants or their employees to unfair treatments due to factors not directly related to work so as to safeguard equal employment opportunities of the citizens. Therefore, the Supreme Administrative Court held that the legislative policy objective associated with “past membership in any labor union” as one of the objects of equal rights protection in the Employment Service Law, is certainly different from the objective of the solidarity right protection policy under Article 35 of the Labor Union Act. If an employer provides unfavorable treatments to the employees, the employees should first ascertain the employer’s objectives, motives, and other factors before seeking remedies pursuant to each respective law.
[1]Article 5, Paragraph 1 of the Employment Service Act: For the purpose of ensuring a national’s equal opportunity in employment, employer is prohibited from discriminating against any job applicant or employee on the basis of race, class, language, thought, religion, political party, place of origin, place of birth, gender, gender orientation, age, marital status, appearance, facial features, disability, horoscope, blood type, or past membership in any labor union ; matters stated clearly in other laws shall be followed in priority.
[2]The Lao-Zhi-Ye-0950062428 Circular of August 10, 2006 from the Ministry of Labor
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