Petitioners for Interpretation: Judges, The Fifth Court, Taipei High Administrative Court (hereinafter, Petitioner No. 1). During the adjudication of the same court (109) Tzu-Tzu No. 420 Labor Standards Act (hereinafter refers to as the Lau-Gi Act) case, it was noticed that the applicable stipulation Paragraph 1 to Article 49 of the Lau-Gi Act (hereinafter the disputed provision), which prohibits only one gender from working during 10:00 P.M. to 6:00 A.M. the next morning (hereinafter night work), without reasons inherent to the individual, such as pregnancy, thereby deprives female workers’ of the right to perform night work or reduces their employment opportunities, and may violate Articles 7, 15, 22 and 23 of the Constitution. After ruling to stay the proceedings, the Court filed a petition to the Judicial Yuan for a constitutional interpretation.
Petitioner for Interpretation: Cha-Fu Co. Lt. (hereinafter Petitioner No. 2). The company has been inspected by the Kaohsiung Municipal City Government, Taipei Municipal City Government, Taoyuan Municipal City Government, Taichung Municipal City Government, Changhwa County Government, Maoli County Government, Pintung County Government, and Tainan Municipal City Government for violation of the Lau-Gi Act from 2015 to 2019. It was discovered that Petitioner No. 2 had requested female workers to work at night without obtaining consent from a labor union and was punished with an administrative fine of N.T.$ 20,000 to 800,000 for these violations in accordance with Article 79, Paragraph 1, Item 1 and Article 80-1, Paragraph 1 of the same Act. Petitioner No. 2’s name and the names of the persons responsible for its operation were also publicly announced. After Petitioner No. 2 had lost all its lawsuits in the administrative courts (hereinafter, the Final Judgement Nos. 1-12, as listed in the accompanying chart), it filed a petition to the Judicial Yuan for a constitutional interpretation. Petitioner No. 2 asserts that the Final Judgements Nos. 1-12 based on the disputed provision unlawfully infringes its property rights and its freedoms of business and contract.
Petitioners for Interpretation: China Airlines Co. Lt. (hereinafter Petitioner No. 3). The Company has been audited by the Taoyuan Municipal City Government in 2015 and 2016 respectively for potential violations of the Lau-Gi Act. It was discovered that Petitioner No. 3 had requested female workers to work at night without obtaining prior consent from a labor union, that was in violation of the disputed stipulation and the violations have been committed repeatedly. Consequently, the company was administratively fined N.T.$ 50,000 and 300,000 for these violations in pursuant to Article 79, Paragraph 1. Subparagraph 1 and Article 80-1, Paragraph 1 of the same Act and Article 42 of the Generalized Standards for Punishment for Violations of the Labor Standards Matters issued by the Taoyuan Municipal City Government. Petitioner No. 3’s name and the names of the persons responsible for its operation were also partially announced to the general public. After Petitioner No. 3 had lost all its lawsuits in the administrative courts (hereinafter as Final Judgements Nos. 13-14, as listed in the accompanying chart), it filed a petition to the Judicial Yuan for a constitutional interpretation. Petitioner No. 2 asserts that the Final Judgements Nos. 13-14 based on the disputed provision unlawfully infringes its property rights and its freedoms of business and contract.
Regarding the above-mentioned petition for constitutional interpretation filed by the judges, since the court ordered a stay of proceedings and, based on an objectively formed conviction that the law is unconstitutional, petitioned the Judicial Yuan for a constitutional interpretation, and upon review the petition meets the requirements contained in J.Y. Interpretations Nos. 371, 572 and 590 governing judicial petitions for constitutional interpretation, it is accepted. As for the petitions filed by ordinary citizens, upon review they are found to be consistent with the requirements stipulated in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act (hereinafter, the Da Sen Act), they are likewise accepted.
Upon review of the above petitions filed by the judges and by the ordinary citizens, both raise doubts as to the constitutionality of the disputed provision and share common issues. They are therefore consolidated for joint adjudication, and this Interpretation is rendered with the following reasons :
The citizens of the Republic of China, regardless of sex, are equal before the law; this nation shall eliminate gender discrimination, promote substantive equality of status between the sexes, as formally proclaimed by Article 7 of the Constitution and Article 6 of the 10th Additional Article of the Constitution respectively. The constitutional guarantee of equality does not, by itself, forbid the State from making differential treatments. However, where a legal norm classifies based on sex and thereby creates differential treatments—using a suspect classification grounded in immutable personal characteristics or in historical or systemic stereotypes—the Judicial Yuan has applied an intermediate standard of review with heightened rigor (see J.Y. Interpretation No. 365). Therefore, the legislative purposes of the said legal norm must pursue important public interests, and the means utilized that produce the differential treatments must bear a substantial relation to achieving that purpose. Only when these conditions are met is the constitutional guarantee of equality not violated.
The disputed provision provides that employers shall not request female workers to work between the hours of 10 P.M. and 6 A.M. the next morning, unless the employer obtain consent from a labor union, and if no labor unions are present in the business entity, the consent shall be granted by an employee-employer conference. Additionally, the following requirements must be met: (1) necessary safety and health facilities are provided; (2) when no public transportation equipment is available, the employer provides other transportation means or arranges for a female workers’ dormitory. Although the provision is framed as regulating employers, its result is that female workers are, as a rule, barred from night work, and since even the exception requires union or labor–management consent, thereby restricting women’s employment opportunities. Male workers, by contrast, face no such prohibition on night work and may work at night without union or labor–management consent. Viewed from this perspective, the provision uses sex as the classification standard and imposes an unfavorable differential treatment on female workers. Therefore, for the provision to be constitutional, its legislative purpose must pursue important public interests, and the means adopted to achieve such differential treatment must bear a substantial relation to achieving that purpose.
The reason the disputed provision generally prohibits employers from assigning female workers to night work can be found and discerned from the legislative history: considerations of public order, protection of motherhood, women’s responsibilities for bearing and raising children, women’s family-care duties, and the protection of women’s health (Volume 91, No. 47 of the Gazette of the Legislative Yuan, pp. 45-89). The competent authority has also stated: “Given that women’s child-bearing years account for much of their working life; that during this period women generally bear heavier physical and mental burdens than men; and that maternal health has a clear and direct relationship to whether the next generation is sound. Accordingly, prohibiting employers from assigning female workers to night work, so as to avoid work arrangements that conflict with the human biological clock and would affect their health is based on considerations of maintaining a stable population structure and safeguarding intergenerational health and safety in society…” (Responses from the Ministry of Labor to the opinions of this Yuan on July 6, 2021 is cited). On this basis, the purposes of the challenged provision may be summarized as the following: protecting the personal safety of female workers; maintaining their health by avoiding night work that conflicts with the circadian rhythm and, consequently, stabilizing the population structure and protecting intergenerational health and safety in society. All of these are important public interests.
Maintaining public order is an inherent responsibility of the State, and Article 10, Paragraph 6 of the Additional Articles of the Constitution further provides that “the State shall protect the personal safety of women.” Accordingly, with respect to the concerns about women’s personal safety when traveling at night, the State has an affirmative duty to actively adopt all feasible protective measures—including, when necessary, legislating to require employers who intend to assign female workers to night work to provide transportation or dormitory accommodations—so as to secure the personal safety of women engaged in night work, rather than adopting a method that prohibits women from night work. Yet the disputed provision, invoking the protection of women’s personal safety, imposes a general prohibition on employers assigning female workers to night work, thereby turning the right to safe movement at night— which women ought to enjoy and have protection for—into a reason to restrict their freedom to choose night work. This shows that the means employed clearly lack a substantial relation to the ends sought.
Second, from the perspective of safeguarding physical health, avoiding night work that disrupts the biological clock is necessary for the protection of all workers, not only for women. Nor is it easy to assert that, because of physiological differences, the harm to the health of female workers who work at night is necessarily greater than that to male workers. Accordingly, employers may not be categorically prohibited from assigning female workers to night work on that basis. As for the claim that if women work at night they must still do housework and care for children, thereby inevitably increasing their physical burden, this view not only confines women to particular roles in family lives and reinforces unwarranted stereotypes about women, but also ignores that the responsibilities of raising children and caring for the family should be reasonably shared by all family members who live together, according to their circumstances, rather than borne by women alone. Moreover, such a double burden of night work and daily household chores may fall on workers of any sex, not limited to women. In addition, the foregoing claim is wholly inapplicable to single women or to female workers without family responsibilities.
Moreover, the proviso to the disputed provision expressly states that where an employer has obtained the consent of the labor union—or, if the enterprise has no union, the consent of its employee-employer conference—and has provided the related facilities required by the proviso, the employer may have female workers perform night work. In other words, union or labor–management consent is a procedural requirement for assigning female workers to night work. From the standpoint of an employer’s directions regarding working hours, a consent procedure via the union or employee-employer conference does ordinarily play an important role in protecting workers’ rights and interests, preventing vulnerable individual workers from having to accept unreasonable work instructions that could endanger his (or her) life or health. However, whether a female worker is suited to night work often varies with her individual willingness and circumstances and it is difficult to generalize what situations implicate interests that ought to be protected. It may be inappropriate for a union or a labor–management conference to make that decision on behalf of all female workers in a business entity. Moreover, the organizational structures and actual operations of unions across business entities are highly complex and diverse, and the gender composition of union membership varies considerably. Therefore, whether a union’s decision authorizing or refusing night work can legitimately substitute for the will of individual female workers is open to doubt. Accordingly, making union or labor–management consent a procedural condition for lifting the employer’s prohibition on assigning female workers to night work is a means that can hardly be said to bear a substantial relation to achieving the purposes of the disputed provision.
In sum, the disputed provision imposes differential treatment on female workers, and the means adopted lack a substantial relation to the achievement of its purposes. Falling into gender-role stereotypes, it violates Article 7 of the Constitution’s guarantee of gender equality and shall cease to have effect as of the date this Interpretation is promulgated.
Finally, under Article 5, Paragraph 1, Subparagraph 2 of the Da Sen Act, the term “final judgment”—in light of the statute’s legislative intent and structural design—means a judgment rendered after the petitioner has exhausted the ordinary judicial remedies in accordance with law. Upon review of the judicial judgements invoked by Petitioner No. 2: the Taipei High Administrative Court Hsu-Tze No. 1083 judgement in 2011; the Taiwan Taichung District Court’s judgement for Jen-Tze No. 7 Administrative Procedure Case in 2008; and the Taiwan Chanhwa District Court judgement Jen-Tze No 27 Administrative Procedure Case in 2008. All of these cases are entitled to appeal in pursuant to the applicable laws. Petitioner No. 2 has not exhausted the above judicial remedies as required. As a result, those cases cannot be regarded as a decided and final judgement as referred to in the Da Sen Act and cannot serve as a basis for a petition for constitutional interpretation. In addition, as for petition filed by Petitioner No. 3 for an interpretation on deciding whether Article 84-1 of Lau-Ji Act is unconstitutional, since the statements made by this petitioner have failed to specify concretely how that provision objectively violated the Constitution. Therefore, this portion of petition is also not in pursuant to Article 5, Paragraph 1, Subparagraph 2 of the Dan Sen Act. In accordance with Article 5, Paragraph 3 of the same Act, all these petitions shall not be accepted.
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*Translated by Cing-Kae Chiao