論受僱醫師納入適用勞基法──脫離囚徒困境改變遊戲規則

Discussing the Application of Labor Stan-dards Act to Employed Physicians: The Rules of the Game Should Be Changed to Escape the Prisoner’s Dilemma

本文從賽局理論的觀點，就受僱醫師納入適用勞基法這個議題，分析受僱醫師、受僱醫師勞動團體、醫療機構、醫療機構團體、與政府等參與的各方如何互動，選擇最有利的策略，達成均衡的結果。受僱醫師排除適用勞基法所形成的囚徒困境，可以透過改變遊戲規則加以脫離。首先，二○一七年衛福部修定的「住院醫師勞動權益保障及工作時間指引」，試圖以行政指導的方式，引導醫療機構改善受僱醫師勞動條件，然因不具強制力，只能有限度的改變遊戲規則。其次，受僱醫師組織工會，與醫療機構進行團體協商，締結團體協約的途徑，在目前因為加入工會的人數不多而緩不濟急。最後，政府如果站在保障受僱醫師勞動人權，提升國人醫療照護品質的立場，選擇受僱醫師納入適用勞基法，將是改變遊戲規則最直接的途徑。在受僱醫師納入適用勞基法之後，新的賽局又隨之展開。

This paper attempts to introduce the analysis method of game theory in the study of labor law and open up different perspectives of labor law research. In terms of the issue whether the Labor Standards Act is applicable to employed physicians, I use the model of the game theory to analyze the games between the employed physician, the group of employed physicians, the medical institution, the group of medical institution, and the government. As of August 2018, since the Labor Standards Act does not apply to employed physicians, their working conditions are unprotected. As such, a prisoner’s dilemma is existed. In order to escape the prisoner’s dilemma, the rules of the game should be changed. The “Guidelines for the Protection of Residents’ Labor Rights and Working Hours”, which was revised and published by the Department of Health and Welfare in 2017, provides only a little help in solving the above mentioned issue. Organizing trade unions and negotiating a collective agreement with medical institutions is another way to change the rules of the game. This is a difficult route because currently only a small portion of physicians joined the trade union. This article argues that from the perspective that the government shall makes its policy decisions based on the considerations of protecting the employed physicians’ rights and improving the quality of medical care for Taiwanese, the application of the Labor Standards Act to the employed physicians is the direct way to resolve the problem. After the rules of the game have been changed, the working conditions of the employed physician will be protected formally. In the future, whether the legal provisions can be implemented? It is still subject to the results of the new games between the employed physician, the medical institution and the government after the application of Labor Standards Act.