現代職業災害法制臺灣實踐

Occupational Injury Protection Law Practiced in Taiwan

西方國家職業災害社會爭議的出現，與18世紀末葉以來工業革命的發展有關。至今，職業災害仍是全球重要的公衛問題，職業災害受害勞工能獲得補償金，是落實世界人權宣言與兩人權公約勞動人權之重要機制。然而，職業災害補償機制，因勞雇非典型化之趨勢，造成爭議糾紛日增，就臺灣而言，職災補償制度繼受於歐美工業先進國家之立法精神，但全球工業發展快速，不斷援引派遣工之僱用，卻因派遣法建制牛步化，致派遣工之職業災害補償責任，雖有《勞動基準法》及《勞工保險條例》適用，卻對派遣工無實益。因派遣機構是「雇而不用」，要派機構則是「用而不雇」，派遣工之工作場所非僱用者之資方所提供，而是外派至要派之機構所指定的工作處所、環境及所提供之設施、設備提供勞務，雖派遣工從屬於派遣機構，但指揮監督卻是由要派機構所控制，當派遣工發生職業災害，從屬之兩雇主會互推責任，使派遣工二度傷害，更甚者無法獲得補償。

The occurrence of occupational accidents disputes in the Western societies, are related to the industrial revolution development the late 18th century. To date, occupational accidents remain a major global public health problem. It is a critical mechanism for fulfilling Universal Declaration of human rights and the two Covenants on human rights when the victims of occupational can receive the compensation. However, due to the atypical employment trends, the compensation mechanism of occupational accidents are resulting in growing dispute. Regarding to Taiwan, the compensation mechanism of the occupational accidents, despite the applicability of the Labor Standards Act and the Labor Insurance Act which are following the legislative spirit of advanced countries in Europe and America, have no practical benefit for the contract workers because slow development of the contract labor law, although the contract workers are hired constantly due to highly global industrial development. Such issue is caused by the fact that the companies hiring contract workers are not the ones that actually use workers. The working place is not provided by the company that hired workers but by the company that contracts the workers. Although the contract workers belong to the hiring company, they are commanded by the contracting company at the workplace and environment, using facilities and equipment provided by the contracting company. When a contract worker has an occupational accident, the hiring company and the contracting company would shrike liabilities to the other side, causing the second-time injury, and worse of all when the injured contract worker cannot get compensation. In contrast, in China, the labor regulations for the contract worker are well established.