No matter where you are, “whether gender difference brings about differential treatment” is often an important and sensitive topic. In the last several decades, the mainstream trends all over the world, whether related to the right to participate in politics or the right to work and so on, it all points to gender equal development and the eradication of gender discrimination to put an end to unfair treatment arising from gender prejudice.

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   In the past, female workers were prohibited from working at night in principle based on the concerns that female workers who is different from male workers, they will need special protection when they work at night (from 10pm to 6am) because of  “personal safety concerns” and “health risks.” Exceptions shall be approved by the labor union or management-labor conference. Employers shall provide necessary safety and health facilities and also  provide transportation or dormitories whenthere is no public transportation available. Only then, female workers could be arranged to work at night. This was provided to protect the rights for female workers to work at night , as shown in Paragraph 1 of Article 49 of the Labor Standards Act (“LSA”):

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  ”An employer shall not make his /her female worker perform her work between ten o'clock in the evening and six o'clock in the following morning. However, with the consent of a labor union, or if there is no labor union in a business entity, with the approval of a labor-management conference, and the following requirements in each subparagraph are met, the preceding restrictions are not applied: 1. The necessary safety and health facilities are provided. 2. When there is no public transportation facilities available, transportation facilities are provided or dormitories for female workers are arranged.”

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   However, in the job market, one often finds that although the female worker agreed to work during nighttime, but since it was not approved by the labor union or management-labor conference, the employer was later penalized by the competent authority (the LSA has penal provisions for violations). Since there have been many penalized employers who petitioned for constitutional interpretation in regard to this matter, the Justice of the Judicial Yuan rendered the interpretation No. 807 on August 20, 2021 to expressly indicate that, based on “stereotypes of gender roles which unfairly limited female workers’ rights to work at night and resulted in differential treatment to female workers,” Paragraph 1 of Article 49 of the LSA was obviously in contravention of “gender equality” in the Constitution, and ordered that such provision shall be invalid immediately.

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   According to the invalidation of the provision, although it now allows employers to arrange nighttime work for female workers with their consent and does not need to obtain approval from the labor union or the management-labor conference, but if a worker in the case has personal safety or health concerns and cannot work at night, how an employer arranges such a worker for nighttime work brings about new concerns whether such arrangements comply with the law.

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   In regard to this, the Ministry of Labor made several explanations, including: 1. Pursuant to the Judicial Yuan’s interpretation No. 807, it will combine practical experience and expert opinions to promote an amendment of the law. And based on the principle of gender equality in the aspect of labor, it will continue to promote nighttime workers’ protection (i.e. providing “safety protection measures for nighttime work” and “appropriate transportation or dormitories when there is no public transportation available”); 2. The provisions in Paragraphs 3 & 5 of Article 49 of the LSA provides that the employer shall not force a female worker who has a  health or other justifiable reason to work at night and prohibit the female workers who are pregnant or are feeding their babies working at night, these provisions should not be affected by the interpretation.

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   Hence, referencing the Ministry of Labor’s opinion regarding interpretation No. 807, we can see that:

   Prior to the amendment of the LSA, employers should still pay attention to avoid arranging pregnant or breast-feeding female workers to work at night. If it is necessary to arrange for female workers to work at night, in addition to making sure they have obtained the consent from the female worker, employers should also pay attention to whether the female worker’s health can bear the load of the work and give her appropriate rest time. They shall not force female workers to work at night.

Moreover, when employers arrange for workers to work at night, although it does not expressly provided that employers shall provide safety protection measures for nighttime work, or appropriate transportation or dormitory when public transportation is not available by current law, but based on the principle of gender equality in the aspect of labor and the goal of providing workers protection for nighttime work, it is still deemed to give nighttime workers appropriate personal safety protection and, at the same time, pay attention to the worker’s health.

Then, the employer can not only demonstrate its commitment to protect the safety and health of the worker, but also increase the worker’s trust in the employer for securing a positive management-labor relationship. As a result, employers and workers can work together and toward a more positive and growing industry.

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（Author: Hsuan-Hong Chen, Senior Associate）

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