Worked to Death: Amend the Labor Laws

Worked to Death: Amend the Labor Laws
China Times editorial (Taipei, Taiwan, ROC)
A Translation
March 11, 2011

Responding to recent incidents of death from overwork, Premier Wu Den-yih said he was "deeply ashamed." Workers have indeed been worked to death. Employers may be directly responsible. But the laws have also failed to provide adequate protection. The system is ridded with loopholes. The "competent authorities" are anything but. This all adds up to government failure. We hope the government will amend the laws, become more involved, and provide greater protection for workers.

The Labor Standards Law states that the work day shall not exceed eight hours, Workers shall not be required to work more than 84 hours over a two week period. Overtime hours plus normal working hours shall not exceed 12 hours a day. Workers shall not be required to work more than 46 hours of overtime a month. But Article 84 of the Labor Standards Law contains an enormous loophole. It makes exceptions for work classified as "monitoring" or as "intermittent." Employers may then obtain exemption from the Council of Labor Affairs reqarding working hours, holidays, vacation leave, and women's night work.

As a result, Article 84 of the Labor Standards Law is jokingly referred to as the "Overlord Clause." Of course certain industries have special requirements. They require greater flexibility in scheduling working hours. But employers exploit this flexibility and force workers to work overtime endlessly, without legal consequences. Either that, or the penalties have no teeth. As a result, some employers have no qualms about exploiting their workers.

Between capital and labor, labor has long been at a disadvantage. It has long needed the protection of the law and of unions. But some industries or companies lack trade unions. Either that, or the trade unions are not strong enough. For workers to keep their jobs, they must often endure exploitation. Citing a "system of accountability," bosses often treat workers like beasts of burden. Workers dare not protest, even when they are worked so hard their livers burst. The Labor Standards Law makes exceptions for 36 types of labor. Nothing protects workers performing these types of labor against unreasonable demands. Once their rights have been violated, once their health has been endangered, they lose the ability to work any longer, due to fatigue or even death. They are no longer even able to seek legal redress.

In the past death due to overwork usually referred to the technology industry. These industries adopted a "system of accountability." Workers were assigned to one project after another. Many workers were kept so busy they had no time even to sleep, Some slept in the office. Electronics industry recruiters would joke that "a fresh batch of livers has just come in." In fact many other industries have been exempted from the Labor Standards Law. Many of them also have a high incident of burst livers. One 29 year old security guard was forced to work 288 hours a month. He was allowed only 73 hours of leave a year. He eventually died of a stroke while on duty. Such victims of legal loopholes raise public concerns. If the law is not amended, if conditions are not improved, if penalties are not increased, such tragic deaths from overwork will recur.

Certain industries do have special requirements. But this means different rules for working hours, overtime and leave. It does not mean carte blanche. It does not mean allowing employers to do whatever they want. Certain industries may have special requirements. But this is no excuse to risk workers' health or even workers' lives.

Article 84 of the Labor Standards Law states that employers may request exemptions from the CLA regarding limits on working hours. It states that employers and employees may negotiate their working hours, then report their agreement to the local competent authority. But in reality, such "agreements" between employers and employees are unilateral decisions made by employers, which workers are forced to sign. Workers who refuse risk being blacklisted or losing their jobs. As a result, they almost always acquiesce. On the surface these are bilateral agreements. In reality they fail to reflect the views of the workers. They enable employers to exploit workers and to deny them their rights.

Better methods are available. Competent authorities should listen to both employers and employees. They should weigh industry needs, establish rules that enable the industry to remain in operation, but also protect workers by limiting their working hours and ensuring sufficient leave time. For example, security guards should be allowed to work in shifts. This would offer them relief from the pressure of long working hours. Unfortunately many local authorities have a negative attitude. They have no desire to increase the work load. They have no desire to offend important local industries. They may even be indifferent to their working conditions. Such officials have defaulted on their responsibility to protect the public.

Business owners should also realize that no one has the right to sacrifice other peoples' lives. No matter how much big the company, no matter how high stock prices might rise, no matter how much they might contribute to the GDP, nothing is as valuable as a human life. Working conditions for employees is the responsibility of employers. No matter how demanding the work, one must not violate the fundamental principles of humanity. One must not callously sacrifice the health and lives of employees. Any company that does so is immoral. It should be condemned by society, and penalized by law.

A string of deaths from overwork has occurred on Taiwan. The law is clearly riddled with loopholes. Government agencies have been lax in their duty. They have given employers carte blanche, allowing them to exploit their employees. Death from overwork is a black mark on a company. It is also proof of government malfeasance. Taiwan's economic growth must not be built on the sweat and blood of hapless workers. The government must not turn a blind eye to the lives of workers, merely for a bigger bottom line.

正視過勞死悲劇 修補法令漏洞
2011-03-11 中國時報

針對最近多起過勞死案件，行政院長吳敦義表示「很慚愧」。的確，勞工被工作壓迫到過勞死，雇主固然要負直接責任，但法令保護不周、制度疏漏、主管機關怠惰，卻是公權力的錯。我們期待政府儘快修改法規、積極介入，為勞工提供更多保障。

《勞動基準法》規定，勞工每日工作時間不得超過八小時，每兩周工時不得超過八十四小時。加班工時連同正常工時，一天不得超過十二小時，每月加班總時數不得超過四十六小時。但《勞基法》八十四條之一卻又門戶洞開，勞工工作特質若符合監視性或間歇性，雇主可向勞委會申請排除適用《勞基法》對工時、休假、例假、女性夜間工作等限制。

也因為如此，《勞基法》八十四條之一被謔稱為「太上皇條款」。當然，有些行業的確有其特性，在工時調度上需要比較多的彈性，但問題是，如果雇主的「彈性」大到可以讓勞工長期嚴重超時工作，而不必擔心違法，或者罰則不痛不癢，那麼，有些雇主恐怕就不會客氣了。

勞資之間，勞工原本就相對弱勢，需要法律與工會的保護。但有些產業或公司並沒有工會，或者工會的力量不夠強。勞工為了保住飯碗，常常不得不委屈忍耐，在「責任制」的大帽子下，替老闆做牛做馬，操到爆肝也不敢抗命。這些被《勞基法》排除適用的卅六種行業勞工，沒有可以保護自己對抗不合理要求的武器，一旦權益遭侵犯、健康受危害，甚至因為過勞而失去工作能力甚至猝死時，根本無法討回公道。

過去提到過勞死，大家多想到科技業，因為這些行業採取所謂的「責任制」，專案一個接一個交辦下來，許多員工忙得不眠不休，甚至直接睡在辦公室裡。電子業便戲稱，招募新人是「又有一批新鮮的肝進來了」。其實，被排除在《勞基法》之外的其他行業勞工，許多一樣經常處於爆肝狀態。一位廿九歲的年輕保全員，每月工時達二百八十八小時，一年只休假七十三天，最後在執勤時中風不治，這個例子引發了各界的關切，因為他其實是法令疏漏下的犧牲品，如果不修法改善規範並提高罰則，過勞死的悲劇恐怕不會就此結束。

的確，若干產業有其特殊性，但這應該意味著需要另一套對工時、加班與休假的規範，而不是完全放任不管，讓雇主可以為所欲為。儘管這些產業的工作型態較為獨特，但這不是拿勞工的健康甚至生命去冒險的藉口。

《勞基法》八十四條之一規定，雇主可向勞委會申請排除適用工時限制，由勞雇雙方另行約定工作時間，並報請當地主管機關核備。但現實狀況裡，所謂勞雇雙方的約定，經常是雇主單方面決定並交給勞工簽字同意。面對著可能被列入黑名單甚至丟飯碗的風險，勞工幾乎只能乖乖同意，這種表面兩願實則一面倒的約定，並不能充分反映勞工的意見，勞工的權益很容易被剝奪。

比較理想的處理，應該是由主管機構公平採納勞資雙方的意見，衡量該產業的需求，研擬出可以維持運作又能保護勞工的工時與休假規定，例如保全應該可以用輪休來紓緩長時間工作的壓力。但許多地方主管機構態度並不積極，不想增加工作負擔，或者不想得罪當地重要業者，甚至對勞工的工作條件與環境不聞不問。這種怠惰，嚴重有虧政府保護人民之職責。

此外，企業主也應該體認到，沒有人有權要別人賣命，不管事業有多大、股價漲多高、對ＧＤＰ有多大貢獻，都遠遠比不上一條人命的價值。員工的勞動條件與環境，是雇主的責任，工作要求再嚴格，也不能違反人道原則，毫不在乎地讓員工犧牲健康乃至生命的企業，是不道德的，應該受到社會唾棄以及法律的懲罰。

台灣接連發生過勞死，顯然是法令出現漏洞、政府部門怠於職守，以致放任勞工遭到雇主壓榨。過勞死不但是企業的恥辱，更是政府失職的證明。台灣的經濟成長不該由血汗築成，政府不能再坐視勞工為錢賭性命了。