「同船異夢」的跨境勞動：外籍勞工規範制度之台灣法律史考察

媒體披露外籍勞工的勞動條件惡劣，此處境與同樣跨境來台工作的白領外國人「同船異夢」。既有研究檢討台灣法令與國際規範的落差、批判現行制度包藏階級化種族主義、或探討個別外籍勞工忍耐或反抗壓迫的方式。本文則以法律史為研究方法，關注外籍勞工的法律動員，觀察法律與社會相互影響下法律制度的動態演變，藉由共構論觀點嘗試回答歧視與壓迫如何透過法律變遷而轉換其形式。首先，台灣在1980年代的「缺工」爭議中逐步開放引進外籍勞工，並在1992年制定就業服務法，形成規範所有外國工作者的法律框架。輿論將外籍勞工本質化為教育、文化、衛生水準落後的「他者」，立法者藉此論述合理化嚴格限制外籍勞工聘期、不得自由轉換雇主、定期接受身心檢查等管控措施，又限制只能在遠洋漁船上雇用大陸勞工，均反映出台灣社會的種族偏見與國族想像。而國家開放聘僱外籍家務工替代本地女人處理家庭照顧事務，則鞏固了家務工作性別化。總之，外籍勞工開放政策為雇主的利益提供服務，並針對外籍勞工量身打造階級化、種族化、又性別化的法律框架。接著，面對關廠欠薪或不法侵害等困境，外籍勞工雖曾透過陳情而使工作轉換限制略為放寬，更常因為抗爭而被遣返，部分外籍勞工被迫成為施暴者，卻因而被貼上精神異常的污名標籤。政黨首次輪替後，2002年修正的就服法刪除造成強迫勞動的規範，卻也擴大白領外國人與外籍勞工間的差別待遇。同時，國家面對外國工作者抗議居留、歸化門檻及健檢規定帶有種族歧視，獨獨寬待白領外國工作者；入出國及移民法、國籍法依舊拒讓外籍勞工根留台灣；健檢關卡仍針對外籍勞工而設。劉俠事件後，TIWA等倡議團體呼籲訂定家事服務法保障家務工的勞動權益，國家卻將照顧者與被照顧者間的衝突歸咎於個別雇主不當剝削或勞工身心狀態不佳，且公共長照服務的缺無使被照顧者團體憂心權益受損而加以抵制，導致家服法立法倡議失敗。高捷泰勞抗暴事件後，倡議團體以「使人為奴隸罪」告發雇主與仲介進行司法動員，並展開關於預防人口販運的行政遊說與立法動員。前者遭遇仲介向外勞提起民事賠償訴訟予以反制；後者雖促成入出國及移民法修正，新法賦予受害勞工的救濟途徑與程序保障仍不足以使其擺脫結構性壓迫。嗣後，承諾建立長照體制的國民黨再次執政，外籍勞工團體遂又透過立委提出家事服務法草案。然而，勞委會以法規研議為藉口延宕立法進度，且官方提出的家事勞工保障法草案更與倡議團體的主要訴求背道而馳。此外，針對充斥各項爭議的長期照顧服務法草案，TIWA與部分被照顧者／雇主團體成立長督盟，推出訂有「個人看護落日條款」的版本，與行政院、長推盟提出的版本競逐。可惜立法院否決了落日條款，最終通過的長照法確立了外籍家務工與長照服務並存的「雙軌制」，未能解決台灣社會既依賴又剝削外籍家務工的問題。最後，本文觀察到宜蘭漁工職業工會等團體持續倡議將外籍漁工一律納入勞基法保障，政府從未回應，反倒有立委提案修改漁業法，准許為外籍漁工投保商業保險取代強制納保的勞保，節省雇主的人力成本。2017年底訂定的外國專業人才延攬及僱用法給予白領外國工作者諸多優惠，與外籍漁工的處境對照，法律制度的階級歧視昭然若揭。本文回顧1980年代以降之外籍勞工法規範變遷及法律動員，發現外籍勞工長期身處法律制度塑造的壓迫結構，且階級歧視與種族歧視經過重新「包裝」而更加穩固。希望透過這份論文批判性地反思「外籍勞工的勞動處境已經逐漸改善」的觀點，促使國家更積極推動修法與真正足以改變弱勢者困境的政策。

關鍵字

法律史；法律動員；外籍勞工；就業服務法；階級歧視；照顧工作性別化；種族主義

並列摘要

There were reports of foreign workers, including blue-collar workers, fishermen, and domestic workers, in poor working conditions, quite different from white-collar foreign workers although all of them come across the border to work in Taiwan. Previous studies reviewed the gap between Taiwan’s law and international norms, criticized the existing system for embracing class-based racism, or explored the ways individual foreign workers endure or resist oppression. This article used legal history as a research method, paid attention to foreign workers’ legal mobilization, observed the dynamic evolution of the legal system under the mutual influence of law and society, and tried to answer how discrimination and oppression transform through the constitutive theory. First, the government lifted the ban on bringing in foreign workers step by step under the dispute over "is there lack of labor?" in 1980s, and formulated the Employment Service Act that regulated all foreign workers in 1992. Public opinions marked foreign workers by backward "others" with poor education, culture, and health standards that were naturalized as essential. Legislators used the opinions to rationalize the regulations that set restrictions on the duration of the employment permit for foreign workers, deprive them of the freedom to transfer to a new employer, make them undergo regular physical and mental examinations, and restrict that China workers can only work for ocean-going fishing vessels. The regulations reflected racial prejudice and national identification in Taiwan. Additionally, the policy of hiring foreign domestic workers to replace Taiwanese women to handle family care work had consolidated the gendered domestic work. In short, the policy on foreign labor provided interests for employers, and tailors a class-based, racialized, and gender-based legal framework for foreign workers. Then, facing the dilemma of infringements of laws, foreign workers had petitioned to make the restrictions on the transfer of work to be relaxed, but they were more often repatriated because of protest. The exploitation made some foreign workers become perpetrators, then they were labeled as mentally abnormal. After the first rotation of political parties, the Employment Service Act amended in 2002 deleted the norms causing forced labor, but expanded the differential treatment between white-collar foreign workers and the others. Meanwhile, foreign workers protested against the application threshold for residency and naturalization and the health examinations. Afterwards, white-collar foreign workers received preferential treatment, while Immigration Act and Nationality Act still refused foreign workers to stay in Taiwan, and the health check set up for foreign workers. After the Liu Xia incident, TIWA called for the Household Service Act to protect domestic workers. However, the state blamed the conflicts between caregivers and care recipients on individual exploitation or poor health. The lack of public long-term care services made care recipients worried about their rights, this caused the failure of legislative proposal. After the labor fought against Kaohsiung MRT, the advocacy groups started a judicial mobilization, and launched administrative lobbying and legislative mobilization for the prevention of human trafficking. The former was counteracted by recruitment agency filing compensation suits against foreign workers; while the latter facilitated the amendment of Immigration Act but the judicial remedies and the procedural protection for the victimized workers were still insufficient to free them from structural oppression. Since the Kuomintang, which promised to establish a long-term care system, came to power again, the foreign labor groups put forward a draft of Household Service Act. However, the Council of Labor delayed the progress of the legislation, and the official draft version went against the main demands of the advocacy group. Besides, TIWA and some care recipient/employer groups established the Long-term Supervisory Alliance and released a draft version with the "personal care sunset clause" for Long-Term Care Services Act. However, the legislators rejected the sunset clause, and the bill finally passed established a "dual-track system" in which foreign domestic workers and long-term care services coexist, failing to solve the problem of Taiwan's dependence on and exploitation of foreign domestic workers. Finally, Yilan Migrant Fishermen Union and other groups kept advocating that Labor Standards Act should be applicable to all foreign fishermen, but the government has never responded. Instead, the legislators amended the Fisheries Act to allow commercial insurance instead of compulsory payment to help employers save labor costs. In contrast, Act for the Recruitment and Employment of Foreign Professionals benefits white-collar foreign workers, class discrimination in the legal system is obvious. In conclusion, this article found that foreign workers have long been in the oppressive structure shaped by the legal system. Besides, class discrimination and racial discrimination have been re-shaped and become more stable. Through this paper, I hoped to have a critical reflection on the labor conditions of foreign workers, and prompt the country to more actively promote law amendments and policies that are truly sufficient to change the plight of the disadvantaged.