三角習題:男女工作平等法

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1992 / 3月

文‧陳淑美


被認為是支援婦女走出家庭最先進的法令——「男女工作平等法」提出後,引起企業界不少反彈的聲浪,原因為何?社會各界對此法令又有何看法?


參酌美、日、德、瑞典等先進國家的「男女工作平等法」,由我國著名的婦女團體「婦女新知」草擬,是少數由民間社團自行擬定的法令之一,內容在保障男女工作的平等權——規定雇主在招募、僱用、待遇、配置、考績、升遷、職業訓練及福利措施等,均不得因女性而有差別待遇,其中最引起爭議的法條為休假方面的規定。

三種假引爭議

「男女工作平等法」擬定的休假總共有三種:

一是育嬰假:男女勞工均可以「留職停薪」的方式向雇主請求一年的休假。這在我國政府機構及少數民營企業已經實施;不同的是「工作法」規定,育嬰假休假期間,公勞保不得停止,而這是行之經年的公民營機關未做到的。

另外,男女勞工為撫育嬰兒得向雇主請求每天減少一小時工時,期限以兩年為限,減少之工時,不得請求工資。

二是產假及陪產假:產假同勞基法,規定日數不得少於八周;流產假不得少於四周。特別的是規定雇主應於男性勞工的配偶分娩時給予陪產假十四天。

三是兒童照顧休假:員工未滿六歲的子女,若發生疾病、預防接種或其他重大事故時,男女勞工每年都可休假十天,休假期間工資照給。

消息傳出,立刻引起不少婦女的期待。

在廣告界任職的林婷婷一看到報導,立刻向老公提出:「等法案通過了再生第二個小孩」的要求。

會生小孩的贏?

但情況似乎並不那麼樂觀,如此多的休假一經提出,立刻引起牽涉最多的企業單位反彈。

「中華民國的假期已經很多了,再來這些假,大家都不用工作了」,工商界代表之一,高陵國際實業董事長武茂楨激動地指出,目前一年共有五十二個周末假日,若加上春節等國定假日,我國勞工全年的休假日總共有九十六天,若再加上產假、陪產假、育嬰減少工時等,即中華民國的勞工一年只有不到一半的天數可用來工作了。

「勞工不能因為生小孩就來要求這些福利;相對來說,這對於不生小孩的人是否公平?」他質疑。

關於陪產、兒童照顧、育嬰減少工時等,一般企業主認為,可以用勞基法現行規定的事、病、休假等來調整解決。

但是提出法案的婦女團體卻不以為然。法案的起草人尤美女律師就認為,我國現行的假日是否合理、勞基法規定的事、病、休假等如何處理,那是另一個問題,可以通盤再來檢討,但至於陪產、育嬰、兒童照顧等假有其立意的基礎,不宜偏廢。「看大家是把生育下一代當成女性,還是社會大眾、乃至國家的事」,她說。

做得不夠而非太多

擬定這樣的法令,也的確有其實際需要。尤美女認為,以陪產假來說,現代社會多小家庭,許多妻子如果產後有先生在一旁體貼照料,就不必孤伶伶地獨自住在坐月子中心;而育嬰及兒童照顧等休假,不僅是工作媽媽,很多男性也有實質的需要,「就民法規定,夫妻離異後,子女的監護權大多屬於男性,這對於離婚率日高,日漸增多的單親爸爸來說,也是一項保障。」

面對這樣的訴求,工商界則以事實不可能做到來「曉以大義」。

「不是做不做,而是能不能的問題」,武茂楨說,「凡事都要比照德、日、美等先進國家,以台灣中小企業的體質,怎麼承受得了」,他認為,如果做不到而硬性規定,只會使企業在雇用婦女時,多一層考慮而已。

遠東航空公司人事處副處長陳台江則舉例,過去法令規定服役男性應予留職停薪,結果造成企業主不願雇用未服役男性;這是「愛之適足以害之」的先例。

婦女界卻不領這份「情」。「這是有沒有心的問題」,尤美女認為,企業主這樣的說法是推託之詞。依照目前男性勞工已達飽和的狀況,雇主根本不可能不雇用女性員工;要安定她們,就必須要踏出這一步。

「隨著社會進步,人們的權利義務是慢慢覺醒、增加的,企業應該去負擔這一部分的社會責任」,婦女新知前任董事長薄慶容認為。

比較起先進國家,「我們是做得太少,而不是做得太多的問題」,薄慶容說,歐美各國的婦女福利約在廿年前開端,我們在廿年後才急起直追,「現在做,已經嫌晚了。」

慈善事業!社會服務?

自由派經濟學者則傾向支持企業觀點。中華經濟研究院研究員單驥認為,強制要求企業一定要有托兒或保障婦女的措施,其實是行不通的。「企業不是社會服務或慈善事業,沒有義務去解決個人的問題」,單驥說,因此強迫性的法案,最後可能真的會導致「上有政策、下有對策」,法令與實質各行其道的情形。

也有人認為,生育下一代的各種休假成本,不應由企業主單獨負擔,而是由國家、企業主、個人共同承擔。像加拿大,小孩出生後半年內,婦女可在家休假半年,由政府保險來津貼其工資;而瑞典,員工回家照顧小孩的工時薪資,則由政府從稅金支付。

對話火辣、結局完美

武茂楨因此認為,婦女團體如此要求企業,其實是很有意思的,為何不見她們給政府機構施加壓力?目前「公務員服務法」中也沒有給員工陪產、照顧兒童等福利呀!

婦女新知卻認為,她們也不是不給政府施加壓力,但基本上我們不是北歐社會福利國家,因此希望民間腳步快於官方;政府也許可以對例如設立更完備的托兒、育嬰機構、獎勵企業保障婦女福利等,建立婦女的支援體系做起,「這只是支援婦女的諸多選擇之一」,尤美女說。

剛擬好的「男女工作平等法」經過兩次公聽會後,已經送進立法院審查了。經過企業界、婦女團體、學者、社會人士幾番「火辣辣」的對話之後,爭議點雖還很多,但各方的立場卻已充分呈現。因此不管它是否能夠通過?會被打幾折?就社會教育——特別是宣揚兩性平等方面的目的來看,已經充分達到了。對婦女團體來說,這倒是另一項價值無比的收穫呢!

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EN

The Equal Employment Act: Relief for Working Moms (and Dads)

Jackie Chen /tr. by Peter Eberly

The proposed Equal Employment Act--considered the most advanced piece of legislation for working women in the country--has raised the hackles of the business world. Why? And what do other sectors of society think about it?


The Equal Employment Act, which was drawn up by the Awakening Foundation, a noted women's rights group, in emulation of similar laws in the United States, Japan, Germany, Sweden and other advanced countries, is one of the few pieces of legislation in the R.O.C. to have been drafted by a public interest group. Aimed at ensuring equal rights for men and woman at work, it stipulates that employers cannot afford differential treatment to woman in recruitment, hiring, pay, job assignment, evaluation, promotion, training or benefits, but the most controversial part relates to leave.

Three New Kinds of Leave: The bill envisions three new kinds of leave:

One type is maternity or paternity leave. As under the Labor Standards Law, the bill stipulates that employers must offer no fewer than eight weeks of maternity leave and four weeks of leave for a miscarriage. But it also says that they must offer men 14 days of paternity leave to care for spouses who are about to give birth.

Another is called infant nursing vacation leave. Both men and women would be eligible for a year's unpaid leave of absence, recovering their jobs and their pay at the same level when they came back. Infant nursing vacation leave is already available in the government and a few private-sector companies, but the act goes further and states that the worker would continue to receive medical insurance, which has not been the practice so far.

In addition, both men and women would be able to request permission from their employers to reduce their work hours for an hour a day for a period of up to two years after the expiration of their maternity or paternity leave, although they would not be paid for the hours lost.

The third type is child care leave. Men and women with children under the age of six would be able to take 10 days of paid leave a year to care for the child in case it gets sick, needs to receive a vaccination or suffers an accident.

When word got out, the proposals immediately raised the hopes and expectations of many women.

Lin Ting-ting works in advertising and as soon as she saw the report she turned to her husband and suggested, "After the law is passed, let's have a second child."

Will Baby Makers Win? But the picture isn't all that rosy, it seems. The prospect of all that leave immediately caused a backlash from businesses and government agencies.

"We already have a good deal of vacation and leave in the R.O.C., and with all this added in as well, no one will have to work anymore," opines Alexander Wu Jr., industry representative and chairman of Alex Wu and Sons Enterprise Corp., with some agitation. There are 52 Saturdays in a year, he figures, and adding in state holidays gives workers a total of 96 days of vacation. If you throw in maternity leave, paternity leave, child care leave and so on and so forth, then fewer than half the days in the year will be left for working.

"Workers can't demand benefits like these just because they're going to have a baby. How would that be fair to people who can't have children?" he objects.

Instead of adding three new types of leave, most employers believe workers should handle the problem by utilizing the three types of leave already set forth in the Labor Standards Law: paid vacation time, sick leave and unpaid leave for personal business.

The group that proposed the law doesn't agree. The attorney who drafted the legislation, Yu Mei-nu, believes that how reasonable the amount of vacation in the R.O.C. is or how the three kinds of leave stipulated in the Labor Standards Law should be handled are separate questions that deserve discussion, but the three kinds of leave proposed in the new bill have their own rationale and shouldn't be rejected out of hand. "It depends on whether we treat having and raising children as the business of women alone or as that of the public or the state as a whole," she says.

Not Too Much, Rather Too Little: There is indeed a real need for a law of this kind, Ms. Yu says. Families aren't as large they once were. To take paternity leave for instance, women wouldn't have to sit all alone in a postpartum confinement center after giving birth if they had their husbands at their sides to take care of them. And nursing and child care leave isn't just for working mothers--many men have a real need for it, too. "Child custody in the R.O.C. usually goes to the father, and at a time when the divorce rate is climbing and there are more and more single fathers, it's a form of insurance for them, too."

As to that approach, businesses say it simply can't be done.

"It's not a question of wanting to or not but of not being able to," says Alexander Wu. "Our system is based on small and mid-sized businesses. If they had to do everything the same way as in advanced countries like Germany, Japan and America, how could they stand it?" If they're legislated to do something they can't, he believes, it will just make them more cautious about hiring women.

Chen Tai-chiang, deputy director of personnel at Far Eastern Air Transport Corp., points out that the law once required companies to rehire young men called for military service in the same position and at the same pay they had received before they were called, but the result was that employers were leery of hiring young men who had not yet been in the service. It was a case of "wanting to help but winding up hurting."

Women's activists don't buy that tack. "It's a question of whether or not they really want to," Yu says, calling that just an excuse. Under present circumstances, employers simply can't afford not to hire women, and if they want to keep them they have to move forward.

"As society progresses, people are becoming more aware of their rights and obligations, and businesses should bear their part of social responsibility," says Po Ching-jung, former president of the Awakening Foundation. As for comparing ourselves with advanced countries, "it's a problem of having done too little rather than trying to do too much." Job benefits for women were introduced in the West about 20 years ago, she says, yet it's only now that we're trying to catch up. "Even now is already too late."

Charities? Free market economists tend to support the view of companies. San Gee, a research fellow at the Chung-hua Institution for Economic Research, believes that trying to force businesses to offer day care or women's benefits just can't be carried out. "Businesses aren't charities or social welfare agencies with an obligation to solve the problems of individuals," he says. As a result, compulsory laws could lead to a situation of "policies above answered by countermeasures below," where the law and reality each go their own way.

Some people think that the cost of leave for raising the next generation should be shared by individuals, employers and the state rather than borne solely by businesses. In Canada, for instance, women can take six months' leave after having a baby, and their wages are supplemented by government insurance. And in Sweden, the hourly pay of employees who go home and care for their children are covered by tax money.

Heated Debate, Laudable Result: Alexander Wu believes that the women's demands are interesting, and wonders why they haven't tried to put pressure on government agencies: There aren't any stipulations about maternity leave or child care in the Public Servants Service Law!

The Awakening Foundation says that they have but that basically Taiwan is not a Northern European welfare state, and so they hope that the private sector will move faster than the government. Perhaps the government can start by setting up a women's support network, by offering more comprehensive day care agencies, or by encouraging companies to protect women's benefits. "Those are just a few of the options," Yu says.

The bill has gone through two public hearings and is now before the Legislative Yuan for review. During heated debate among business executives, women's groups, scholars and the public, there were many points of contention but each of the various sides brought out its views. No matter whether the bill is passed or how much it may be discounted in the process, the goal of educating the public and spreading the concept of the women's rights has already been reached. And for women's groups, that is a laudable result!

 

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