Examining the Constitutionality of the Restrictions on Migrant Workers’ Right to Change Employers:An Equal Protection Approach
Date Issued
2007
Date
2007
Author(s)
Shaw, Yung-Djong
DOI
zh-TW
Abstract
Purpose
Many field studies point out that the working conditions of Taiwan’s migrant workers have been extremely dreadful. One of the main reasons of this tragedy is that the Employment Services Act denies the migrant workers’ right to change their employers during their employment contracts. As compared to the unrestricted rights of the domestic and white-collar foreign workers to change their employers, the constitutionality of the above-mentioned prohibition is highly suspicious. This thesis argues that the different treatment between migrant workers and the other workers manifests the government’s discrimination against the former. Under the Strict Scrutiny Test, such prohibition shall be deemed unconstitutional on the ground that it violates the equal protection clause of the Taiwanese Constitution.
Methodology
Instead of following the predominant international-human-rights approach, the author addresses the mentioned problem by redefining the Taiwanese Constitution’s equal protection scheme. By applying to the concept of justice developed by Rawls and enhanced by Dworkin, and the politics of different established by multi- culturalism and Feminism, the author clarifies the current understanding of the Taiwanese Constitution’s equal protection clause, that is, “to treat the like cases alike, and treat different cases differently”, and challenges the mainstream constitutional scholars’ misunderstanding that migrant workers and the other workers are “different” groups which shouldn’t be treated alike.
Research Outcome
By the research, the author argues that the true purpose of Taiwanese Constitution’s equal protection clause is to abolish all kinds of subordination. Accordingly, migrant workers definitely are the ones whom should be protected by this clause. Furthermore, it is the “to treat the like cases alike, and treat different cases differently” formula which misleads us to keep searching for the “sameness” while applying the equal protection clause. As a result, under the Taiwanese Constitution’s equal protection scheme, migrant workers are entitled to the right to change their employers. The discussed prohibition is thus unconstitutional on the ground that it violated the equal protection clause of the Taiwan Constitution.
Subjects
移工
外籍勞工
就業服務法
客工制度
新奴隸制度
轉換雇主
平等權
階級平等
司法院解釋
實質平等
等者等之
migrant worker
guest worker program
right to change employers
equal protection
judicial review
equality of resources
SDGs
Type
thesis
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