October 2021
Paragraph 1, Article 49 of the Labor Standards Act (restricting female employees from working at night) declared unconstitutional by the No.807 Judicial Interpretation (Taiwan)
Elizabeth Pai and Weke Chen
According to Paragraph 1, Article 49 of the Labor Standards Act: “Employers cannot allow female employees to work between 10 PM and 6 AM unless the employer has the union’s approval—or if there’s no union, then an employee-management meeting’s approval is required—and meet the following conditions: (1) provide the necessary safety facilities; and (2) provide transportation or female dormitory when no public transportations are available.” The judicial interpretation No.807 made by the Grand Justices of the Judicial Yuan on August 20, 2021, declared that the aforementioned regulation violates Article 7 of the Constitution, which guarantees gender equality. Accordingly, such regulation shall no longer apply once the judicial interpretation is published.
The reasoning of such ruling accounted primarily for the law’s differential treatment of female employees; there seems to be a substantial gap between the law’s “means” and its “end.” Such differential treatment constitutes gender stereotypes, and thus violates Article 7 of the Constitution that protects gender equality:
1. One of the reasons for establishing Paragraph 1, Article 49 of the Labor Standards Act is to “protect female employees’ safety.” However, instead of actively adopting “safety measures for female employees,” the lawmaker opted to “restrict female employees’ freedom to choose to work at night” as its means.
2. Paragraph 1, Article 49 of the Labor Standards Act restricts “female employee from working at night” as a means to “protect females’ health and safety.” However, “not working at night to avoid going against our circadian rhythms” is a necessity for both men and women. Argument positing that “women working at night will inevitably increase their bodily stress, as they still have to perform housework and take care of children” falls under gender stereotypes; anyone, regardless of their sex, may be responsible for such a doubly workload. Moreover, such considerations are irrelevant when a female employee is single or has no family burden.
3. Paragraph 1, Article 49 of the Labor Standards Act uses the “union’s or employee-management meeting’s approval” as the basis for allowing exemptions from its rule. However, whether a female employee is apt for working at night depends on that individual; it is thus inappropriate to use a “union or employee-management meeting” as a proxy to decide such matters for all female employees. Moreover, the structure and operation of a union are diverse and complex, which means it does not necessarily have the justification to represent the wishes of each female employee.
Once this interpretation is published, any regulations regarding “night shift employees” shall be applied to all regardless of their sex. However, female employees will not be allowed to work night shifts if they have certain health concerns (Paragraph 3, Article 49 of Labor Standards Act), or are going through pregnancy or lactation (Paragraph 5, Article 49 of Labor Standards Act). (Refer to the Lao-Dong-Tiao-2-Zi No.1100131169 Circular issued by the Ministry of Labor on September 13, 2021)
According to Paragraph 1, Article 49 of the Labor Standards Act: “Employers cannot allow female employees to work between 10 PM and 6 AM unless the employer has the union’s approval—or if there’s no union, then an employee-management meeting’s approval is required—and meet the following conditions: (1) provide the necessary safety facilities; and (2) provide transportation or female dormitory when no public transportations are available.” The judicial interpretation No.807 made by the Grand Justices of the Judicial Yuan on August 20, 2021, declared that the aforementioned regulation violates Article 7 of the Constitution, which guarantees gender equality. Accordingly, such regulation shall no longer apply once the judicial interpretation is published.
The reasoning of such ruling accounted primarily for the law’s differential treatment of female employees; there seems to be a substantial gap between the law’s “means” and its “end.” Such differential treatment constitutes gender stereotypes, and thus violates Article 7 of the Constitution that protects gender equality:
1. One of the reasons for establishing Paragraph 1, Article 49 of the Labor Standards Act is to “protect female employees’ safety.” However, instead of actively adopting “safety measures for female employees,” the lawmaker opted to “restrict female employees’ freedom to choose to work at night” as its means.
2. Paragraph 1, Article 49 of the Labor Standards Act restricts “female employee from working at night” as a means to “protect females’ health and safety.” However, “not working at night to avoid going against our circadian rhythms” is a necessity for both men and women. Argument positing that “women working at night will inevitably increase their bodily stress, as they still have to perform housework and take care of children” falls under gender stereotypes; anyone, regardless of their sex, may be responsible for such a doubly workload. Moreover, such considerations are irrelevant when a female employee is single or has no family burden.
3. Paragraph 1, Article 49 of the Labor Standards Act uses the “union’s or employee-management meeting’s approval” as the basis for allowing exemptions from its rule. However, whether a female employee is apt for working at night depends on that individual; it is thus inappropriate to use a “union or employee-management meeting” as a proxy to decide such matters for all female employees. Moreover, the structure and operation of a union are diverse and complex, which means it does not necessarily have the justification to represent the wishes of each female employee.
Once this interpretation is published, any regulations regarding “night shift employees” shall be applied to all regardless of their sex. However, female employees will not be allowed to work night shifts if they have certain health concerns (Paragraph 3, Article 49 of Labor Standards Act), or are going through pregnancy or lactation (Paragraph 5, Article 49 of Labor Standards Act). (Refer to the Lao-Dong-Tiao-2-Zi No.1100131169 Circular issued by the Ministry of Labor on September 13, 2021)
