A Study of Dispute of the Labor `Outsourcing` of the Public Sector in Taiwan: Speaking from the Temporary Staff Dismissal Case in National Taiwan Sports University

Abstract

Recently, the cases of outsourcing have been pervasively practiced due to the establishment of ”Policies of Private Outsourcing” by the government. Numerous conflicts rose because the original job holders have lost their job and received unfair treatment. In reality, the result of outsourcing is a hiring model that produces a high volume of labor dispatches. The original employer, the government, becomes an agency for job distribution. The original employees have become dispatched workers. From the labors ` perspective, their job responsibilities remain the same; however, their employment status, salaries, benefits, and labor rights are under a new set of different standard. In this article, the rights of those employees who obtain an outsourcing governmental job and are under the protection of labor laws are discussed, especially when they face job termination. In addition, the judicial rulings concerning the aforementioned case is discussed as well. The case cited in this study is: National University of Physical Education v. Its Janitor S. Ct. 553 (2010). The researcher will analyze the rationales of rulings and compare the results of similar type of cases relating to outsourcing conflict.

因「業務委託民間辦理」之政策而使政府機關將行政業務大量實施「委外」，並因此造成原任職勞工因外包而受有不利益並生之爭議事件。政府機關將勞務「外包」的結果乃大量產生勞動派遣之僱用型態，原雇主之政府成為要派機構，而原任職勞工成為派遣勞工，但對勞工而言，同樣的工作內容卻轉換成完全不同的受僱身分、薪資待遇與勞動條件。基此，於公務機關於實施委外的過程中，尤其是適用《勞動基準法》之勞工，如何該當解僱終止之保護，以及，實務上法院對此類型爭議之判決見解為何，本文舉最高法院九十九年度臺上字第五五三號判決為例，評釋判決之論證，並引其他類似外包之爭議判決作為對照之比較，再輔以日本「偽裝派遣」為例，說明我國現行外包制度的「偽性」以及對受僱勞工應有之法律救濟。