The Analysis of Legal Regulation and Actuality of Women’s Night Work 

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Abstract:

Following the social changes, not only the ratio of our female citizens that entering the labor markets have increased, they have also attached importance to the rights of making self-decision. Thus, in the past, for the reason “protecting female workers” to justify the laws and regulations that restrict women to work in the night, now their legality and plausibility have begun to be questioned. Although we have made reference to the contents of the concerned connentions of International Labor Organizations and tendencies, our Labor Standards Act has been revised its clauses to loosen its prohibition against female workers to work in the night, from “prohibition in principle” to “loosen limitation on conditions.” But the item 5 article 49 of the present Act has specified to restrict the pregnant women and nursing mothers to work at night. Owing to that article have been lashed by many domestic employers and employees together, the Ministry of Labor has declared an official interpretation about the article, in March 8, 2016 in order to loosen the limitation on the nursing mother to work at night. But this action incurred strong criticism from some members of the Legislative Yuan, not only let the Ministry cannot help but repeal the interpretation, but also make the problem conspicuous that following the shifts and changes of the environments and alternations of directions of the policies, we have necessarity to review the related laws and regulations that specified the matters and requirements of the female workers to work in the night. Thus, this study mainly inspect under the context of social changes and economical developments, the evolution of the female laborers working in the night, and in the same time, to analyse their relation with the sexual equality. Otherwise, we have started to compare and analyse the related system and regulations about the night time female workers from the countries of U.S.A., Japan, Germany and ILO. ( especially those female workers who are pregrant or feeding babies.) Furthermore, we have investigated with questionnaires and interviewed the parties concerned, so that we can clearly understand the real situation of our female workers who have performed their work at night, and can make more correct analyses about the gains and losses. This study, having been aimed at the above mentioned subject has reached the conclusions and suggestions as follow: 1. Conclusions of the study (1)Following the social changes, economical developments and advocacy of the idea of sexual equality, among both of our domestic employers and employees, and experts and scholars, the ratio of acceptance for the female working in the night have increased obviously. (2)Though the laws and regulations which specify the female workers to perform their work in the night are somewhat different internationally, but all of them have adjusted their direction to loosening, and in the same time, are delicated to improve the working circumstances and requirements for the female working in the night. (3)Except some special industries (like the nurses in the hospitals and the workers in some social service centers) which consist mainly of female employees that need to work in the night by turns, most of our domestic businesses do not coerce their female employees to work in the night, and neither they will ask their female employees to work in the night to be the condition for employment or promotion. (4)Many of our domestic female night-time workers want to choose to work at night, because they have considered the factors of their families and economy. They hope to earn more payment and allowance, if you strictly deny them their night time work, not only will make them unhappy, but also maybe will affect their living. (5)The night time work that influences the health of the laborers should be no difference to sexual difference, except for the female particular physiological characteristics, therefore, most employers when they adopt the measure of protection, do not differentiate male from female. (6)When in the time of pregnancy, the prospective mothers and their fetuses will be subjected to many hidden risks that will be harmful to their health, and the night time work, especially the type of work that perform in rotation are more unfavorable to health than the day time work. (7)Though the women work in the night will hinder them to feed their babies, but that will make their health disadvantageous are uncertain. Some experts admit that the women who work in the night will suffer physiological unbalance, unfavorable to produce milk, but this theory has not been support by any of the conspicuous medical evidence. (8)Present Labors Standards Act lacks flexibility in its definition about the night time work, according to its article 49: the night time means between ten o’clock in the evening and six o’clock in the following morning, but in actual practice, since every business in some degree has its unique or distinctive quality and feature, the characteristic of their work varies one from the other, it is quite difficult to comply with these related laws and regulations. 2. Policy recommendation (1)For the female night time work, we suggest that we ought to continue our present mode: “Open in principle, prohibit in exception.” That is, in general conditions, we should not restrict their rights to work in the night, but in exceptional situations (just as in the time of pregnancy and feeding the babies, e.t.c.) we must properly prohibit them from working in the night to safeguard their health and security. (2)For the definition of the working time in the night, we may consult foreign experiences, make it more elastic to match the need of diversified businesses. (3)To regulate the female night time work, we had better notice the partiaular female physiological characteristcs, and especially when in the time of pregnancy and feeding milk, we must consider the maternal protection. I. Prohibit the pregnant women to work in the night to safeguard the health of the prospective mothers and fetuses. II. For the purposes to let the female workers recover from childbirth, they should not be allowed to work in the night for a period of time. If the parties concerned have passed the period and continue to feed their babies, but are voluntary to do night time work, the related laws and regulations ought to stipulate that the employers must shoulder the responsibilties to protect their health and security. (4)To protect female to work in the night, we should not confirm only in labor laws and regulations, some countries have also taken other measures to restrict directly some industries from running their business at night. For example Germany has legislated “Law of Business Time,” therefore we suggest that our government to review further the different industries about their necessity to work in the night. (5)Above-mentioned have expressed that the definition of the night time in the Labor Standards Act should be adjusted again, the necessity of running business in the night should be reviewed again, because all of these have involved many different industries which belong to different competent authorities, so that when we revise the related laws and regulations in future, we have to take account of many factors, for example, the contradiction among different laws should be avoided at the same time. It is necessary to hold trans-ministry meetings to discuss these problems, and fully exchange ideas and opinions. (6)To work in the night is not simply a right to work, or the topic of sexual equality, some kind of work probably will influence our physical or mental health and lead to the problem of fecundity, if the workers do not understand these risks or serious results, they will naturally ignore them, so that we need our government to intensify their effort to disseminate this kind of knowledge to our workers.