Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers’ reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 
In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.

Headnotes

    Article 2, Paragraphs 1 and 2 of the Enactment Rules of Labor Union Act unconstitutionally violated the Gesetzesvorbehalt principle (Principle obliging parliament to restrict fundamental rights only by or pursuant to a law) because they lacked specific authorization of law as to how "factory and site" in Labor Union Act may be defined, consequently infringing the worker's right to form labor unions.

    In addition, the TCC applied rational basis review and concluded that disputed provisions constitute no violation of the principle of proportionality. 

Background Note

    Following the text of Article 6 of the Labor Union Act, workers from the same factory or site (workplace) of the same corporation may establish a corporate union on a factory or site scale (a "factory/site-scale corporate union") even if there is already one corporate union in the same corporation. However, Article 6 of the Labor Union Act did not provide a definition for "(the same) factory or workplace." Such a definition can only be found in Article 2, Paragraphs 1 and 2 of the Enforcement Rules of Labor Union Act   (hereinafter, "Provision I" and "Provision II") as "workplaces with independent personnel, budget and accounting systems" and other administrative requirement.

    Petitioners of this case, the Corporate Union of the Maintenance Division of China Airlines and Corporate Union of the Sha-Lu Factory of the Aerospace Industrial Development Corporation (AIDC), who both are under corporations with existing corporate unions, applied respectively to the Taoyuan City Government (then Taoyuan County Government) and the Taichung City Government for the registration of their unions in 2014 and 2015. Their cases were permitted but later revoked by the Ministry of Labor (MOL) per the administrative appeals from the existing China Airlines Corporate Union and the AIDC Corporate Union. Their cases went back and forth between the local government and the MOL, then were followed by lawsuits before the Taipei High Administrative Court. The Supreme Administrative Court dismissed their cases finally because the petitioners' premises did not meet the definition of a factory or site.

    The petitioners lodged constitutional complaints, arguing that (1) the disputed provisions have unduly limited the definition of "factories and sites," which violated the Gesetzesvorbehalt principle under Article 23 of the Constitution, consequently infringing the worker's right to form and join labor unions; (2) the elements for their premises to fulfill the definition of "factories or sites" lie entirely in the employer's hands, rendering unionization on a "factory or site"-scale within a corporation nearly impossible in practice; (3) the final decisions of their cases, Supreme Administrative Court Judgments 109-Shang-584 (2022) and 110-Shang-321 (2022), are unconstitutional. 

    Their cases were consolidated and argued on February 21, 2023.

Summary of the Judgment 

Holding

1. Provision I stipulated that “Factories and sites referred to in Subparagraph 1, Paragraph 1 to Article 6 of the Act are those workplaces with independent personnel, budget and accounting systems, and are entitled to apply for factory, business or commerce registration according to related statutes.” Provision II stipulated that “The independent personnel, budget and accounting systems　 referred to the preceding paragraph shall meet the following requirements: 1. The right to hire and dismiss workers of the workplace; 2. Planning and executing its own budget; 3. Establishing its own accounting unit and account to calculate its gains, losses and deficits.” These two provisions violate the Gesetzesvorbehalt principle under Article 23 of the Constitution and shall cease to be effective within two years after the announcement of this Judgment. 
2. Provisions I and II do not violate the principle of proportionality enshrined in Article 23 of the Constitution. 
3. Supreme Administrative Court Judgments 109-Shang-584 (2022) and 110-Shang-321 (2022) (hereinafter, “final decisions I and II”), in which the disputed provisions were applied, are unconstitutional and shall be quashed. The cases shall be remitted to the Supreme Administrative Court.  

Reasoning

1.    Constitutional rights and principles pertaining to this review:

    People have the freedom of association under Article 14 of the Constitution. Article 153, Paragraph 2 of the Constitution further prescribed that the State shall enact laws and carry out policies for the protection of laborers to improve their livelihoods and productive skills. For workers from all walks of life, unionizing could enable their rights to collective bargaining and industrial action so that they could ameliorate their standards for working conditions and promote their socioeconomic statuses. The right to form labor unions (freedom of trade unions) is a worker's fundamental right widely acknowledged by modern states governed by the rule of law. It is also what said articles of the Constitution have intended. The general will formed by labor unions and its relevant freedom of association are protected under Article 14 of the Constitution.【33】

    The implementation of the right to form labor unions concerns the balancing of rights between employers and employees (workers), whose details should be formed through legislation. The details of the regulatory framework of labor unions are pertinent to important matters of the right to form labor unions such as rights between employers and employees and the public interest. The formation of a regulatory framework for labor union falls within the shared competence between the executive and legislative powers. Forming such framework should follow the requirements of democracy and the modern principle of the rule of law (Rechtsstaat principle). As relevant authorities are forming the policy and details of the right to form labor unions, posing restrictions on who the workers may choose to unionize with, or deciding whether workers may unionize to begin with, they should conform to the requirements of the Gesetzesvorbehalt principle and the principle of proportionality under Article 23 of the Constitution, in order to realize the right to form labor unions guaranteed by Article 14 of the Constitution.【34】 

2.    Provisions I and II violate the Gesetzesvorbehalt principle:

    Under current laws regarding labor unions, workers may form a factory/site-scale corporate union within the area of "the same factory or site (workplace)." The concept and scope of application of the phrase "the same factory or site (workplace)" directly involve the elements of forming a corporate union, which are important matters in the formation of labor unions. Regulations on these important matters can only be found in Provisions I and II of the Enactment Rules of Labor Union Act, which was authorized generally under Article 48 of the Labor Union Act.【39】

    However, "the same factory or site (workplace)" in Article 6, Paragraph 1, Subparagraph 1 of the Labor Union Act was not defined in the Act. Viewing comprehensively from the ratio legis presented in Article 1 of the Act and the Act's regulatory system, it lacks operable guidelines—nor a deducible line of policy or conceptual framework—for the competent authority to follow when defining "factory or site (workplace)" through regulations. The competent authority has posed restrictions on said important matters concerning workers' right to form labor unions through Provisions I and II without specific authorization by law, constituting a violation of the Gesetzesvorbehalt principle.【40】 

3.    Provisions I and II do not violate principle of proportionality:

    As it involves the balancing of employer-employee rights and the public interest, the legislator should have more legislative discretion on the ways to form corporate unions. In this case, pertaining regulations should have a legitimate purpose, with measures rationally connected to the said purpose (rational basis review).【42】

    Provision I was revised in 2011 following the amendment of the Labor Union Act, which stipulated "factory or site (workplace)" as the smallest unit (scope) to form a corporate union to prevent unions from being too fragmented to harness collective power. The purpose of Provision I is to facilitate the process of factory/site-scale corporate union registrations for the local labor authority by requiring relevant workplaces to have certain managing abilities. Those requirements ensure the equal bargaining powers between employers and unions. By reaching collective bargaining agreements between employers and unions, working conditions may be improved. The elements for forming unions set by Provisions I and II, although in violation of the Gesetzesvorbehalt principle, are still of legitimate purpose. 【43】

    Provision I set out the elements to establish a factory/site-scale corporate union based on the characteristics of a workplace; Provision II further stipulated explicitly the criteria of an independent workplace where a factory/site-scale corporate union can be established. Viewing from the Labor Unions Act, the two provisions serve the purpose of preventing overabundant corporate unions from existing within the same corporation, which could lead to workers' in-fighting. The measures employed by Provisions I and II are rationally connected to the aforementioned purpose. Provisions I and II do not violate the principle of proportionality under Article 23 of the Constitution.【44】

4.   Final decisions I and II shall be quashed and remanded to the Supreme Administrative Court: 

    The Court found that Provisions I and II have regulated important matters concerning workers' right to form labor unions without specific authorization by the law, violating the Gesetzesvorbehalt principle under Article 23 of the Constitution. The petitions are meritorious. The final decisions I and II, by applying the unconstitutional provisions, should also be unconstitutional and quashed and remanded to the Supreme Administrative Court following Article 59, Paragraph1 and Article 62, Paragraph 1 of the Constitutional Court Procedure Act.【46】