德國1992年工時條例禁止女工夜間工作規定違憲判決之介紹：兼與我國釋字第807號解釋之比較

Introduction to the Lifting of the Unconstitutional Ban on Night Work for Women in Germany in 1992: A Comparison with Interpretation No. 807 Issued by the Constitutional Court of Taiwan

我國勞基法第49條第1項禁止女工夜間工作之規定經大法官釋字第807號宣告違憲，並自解釋公布之日起失其效力，與德國過去工時條例有關禁止女工夜間工作之規定於1992年遭違憲宣告之歷程相似，兩國聲請釋憲之背景、主張理由與解釋，特別是對性別平等之論述內容相仿，故本文對德國1992年工時條例違憲一案之相關法理，以及判決理由中對立法者未來制定新規範之提醒與諭知，詳加介紹；並以德國為參，對於我國釋字第807號之解釋提出省思，認為勞動部雖於違憲宣告後即迅速做出解釋，然對於夜間工作之定位、夜間工作者之保護，無論是以特別法或於勞基法增定條文或其他方式，為立法者之形成空間，立法者應儘速對夜間工作提出一體性之保護規範；另，由於夜間工作與工時長短或配置有關，修法之際，如尚有需得勞工同意之處，考量一般之勞動契約締約當事人欠缺相近的對等實力，仍應有以集體形成之必要，大法官於釋字第807號之解釋，對於得否以工會或勞資會議取代個別女性勞工之意願而為同意或不同意之正當性所生之疑慮，毋寧應以對於工會參與之層級、類型或對於勞資會議之結構應予檢視之角度，予以解讀，並非因而對於集體機制參與企業內部運作之必要性產生質疑或予以否認。

Paragraph 1, Article 49 of the Labor Standards Act, which prohibits women from working at night, was declared unconstitutional in Judicial Interpretation 807, and the regulation became ineffective immediately after the interpretation was published. The process of issuing this interpretation is similar to the lifting of the ban on night work for women in Germany, which was deemed unconstitutional in 1992. Specifically, Taiwan and Germany shared similarity in the background, reasoning, and explanation of the constitutional review petitions, particularly in the discourse of gender equality. Therefore, this study explored the regulations related to the lifting of the German ban in 1992 and clarified the judges’statements and reminders for future legislators. Referencing the case in Germany, this study also reflected on the reasoning of Interpretation No. 807. We noticed that the Ministry of Labor immediately provided an explanation following the declaration of the interpretation. However, the implementation of special laws or new regulations in the Labor Standards Act for defining night work and protecting night workers is based on the discretion of legislators, who should formulate relevant regulations as soon as possible to protect the rights of night workers and prevent the abuse of the night work system. Moreover, working hours and scheduling are essential aspects of night work. The amendment of relevant regulations should take into account the provisions of labor contacts that require the approval of workers. Because power inequality usually exists between employees and employers during the signing of employment contracts, the existence of group participation mechanisms, such as worker unions, is necessary. A concern about Interpretation No. 807 is whether union or labor–management meetings can replace negotiations with individual female workers when attempting to obtain their approval. This topic should be interpreted by reviewing the participation status and types of worker unions and the structure of labor–management meetings instead of focusing on the necessity of group participation mechanisms in maintaining company operations.