Research On The Legal System Of Comprehensive Working Time

The comprehensive working time is a flexible working hour system with average working hours in a certain period.It increases the flexibility of employers to control the labor process,and then affects the right allocation and benefit distribution of labor and capital in working time,and has a significant effect on reducing the labor cost and improving the management performance of enterprises.The question is whether,should,and can the comprehensive working time become an institutional arrangement that takes into account the interests of both employers and employees,and is flexicurity,so as to form a fair and all-win jural relation and cooperation model.This is not only conducive to the growth of social production and welfare,but also conducive to the better protection of employees’ right to rest and time autonomy.This is an important issue to be solved in the legal adjustment of the comprehensive working time in all market economy countries in the world.The value goals and development trends of relevant policies and laws advocated by the ILO are: in order to improve the well-being of workers,the implementation of the comprehensive working time should be conducive to shortening working hours and promoting more reasonable working hour arrangement,which depends on the protection degree of rights and interests provided by labor laws and regulations,the possibility of equal game and fair cooperation between labor and capital,and the appropriate intervention of the government in relevant issues and effective labor supervision.The international community is still exploring the legal path and method to achieve this value goal.Subject to domestic labor policies,laws and special interest relationship,in the practice of comprehensive working time,most employees are in a position of “strong control and more vulnerable”.The comprehensive working time shows a situation of excessive flexibility and insufficient security,and the relevant institutional arrangements are often led and decided by the employer unilaterally.As a result,its application strengthens the control degree of employers,reduces the cost of employers,increases the performance of employers,and increases the burden of employees,which eventually leads to a more unbalanced labor relations.For the economic and legal significance,occurrence mechanism,juridical logic and methods of benign adjustment of the comprehensive working time,the existing theories,labor policies and legislation have failed to form an in-depth study and did not give reasonable and effective solutions,which made the problems and contradictions tend to be common and serious.Based on this consideration,this thesis takes the comprehensive working time legal system as the research object and the flexicurity as the value consideration,and seeks how to promote the transformation of flexibility to the common promotion of the interests of both labor and capital through effective legal adjustment.The following conclusions are formed and confirmed in this thesis:First,the comprehensive working time is a flexible working hour system that flexibly adjusts the daily working hours in a certain period and requires that the average daily or weekly working hours do not exceed the legal standard in a period.Overall,it is embodied as a legal issue,and its legal significance is mainly that the law should follow the value concept of flexicurity,take the balance of labor relations as the goal,make the institutional arrangement of flexible working hours not only meet the economic goals of employers,but also meet the legitimate rights and interests such as rest and working time autonomy of employees,so as to realize the fair and efficient distribution of rights and interests between labor and capital,and produce benign legal adjustment performance.Second,the comprehensive working time has contributed to a new pattern of rights,obligations and interests between labor and capital.The employee’s rights corresponding to the employer’s time control include not only the traditional right to rest,but also the employee’s time autonomy.Among them,corresponding to the guarantee of the right to rest,is a series of substantive elements,with the working hour standard as the core,aiming at dividing working time and rest time.Corresponding to the realization of the employee’s time autonomy,there are those procedural elements,which revolve around the determination of the implementation plan of the comprehensive working time,aiming to realize the equal game between labor and capital on working time.Third,affected by the legal adjustment modes of labor relations in different countries,these constituent elements of the comprehensive working time have been quantified and combined differently,forming an employer led system represented by the compressed working week of the private sector in the United States,the type of labor and capital sharing working time control represented by German working hour account and the legislative mandatory model represented by the Japanese deformation working time,and forming many common experiences.Some of them have strong reference significance for the legal adjustment of China’s comprehensive working time.For example,working hour standards need mandatory norms of national legislation.The recognition of employees is the premise for the successful implementation of the system.The equal game between labor and capital is the core procedural rule.Its implementation requires the participation of trade unions.It should ensure that employees do not face a decline in income due to the implementation of the comprehensive working,and should also give employees a certain level of working time autonomy.Fourth,the comprehensive working time belongs to the national legal special working hour system in China.On the whole,the legal adjustment mode of China’s comprehensive working time is similar to Japan’s deformation working time,all its constituent elements are comprehensively regulated by legislation,and the space for the autonomy of both labor and capital is very small.The difference is that in the quantification and combination of working hour standards,and the composition of procedural rules,China reflects distinct local characteristics.The most distinctive thing is that China has imposed relatively strict applicable conditions and scope restrictions on the comprehensive working time.The government also directly regulates the implementation of the comprehensive working time through the administrative license,forming an institutional pattern of strong legislative norms,direct government regulation and equal consultation between labor and capital.Fifth,China’s comprehensive working time shows a state of excessive flexibility and less security.The specific manifestations are as follows.Flexibility is dominated by employers and unfavorable to employees;normalization of extended working time;its application breaks through the legal restrictions on the application condition and scopes;and the differentiation of enterprise labor relations in its implementation.Behind it,there are both economic and institutional causes,but mainly institutional causes.Firstly,there are deficiencies in the substantive and procedural elements of the comprehensive working time.It is reflected in the extensive working hour standard,which is difficult to distinguish the boundary between working time and rest time,and can not provide stable rest guarantee for employees;the rights distribution between labor and capital is unbalanced,the employer’s rights occupy dominant position,and the employee’s are weak.The expression procedure of employee’s rights is blocked,it is difficult to decide the working hour scheme through equal consultation with employers,and employees still lack the right of time autonomy.Secondly,the administrative license is severe but not strict,which is not only the problem of the system itself,but also the impact of the reform of government governance model,which makes it unable to achieve the preset regulation effect.Thirdly,China’s enterprise human resource management has long regarded employees as costs,lack of humanized care,weak trust and lack of legalization.These specific institutional problems need to be solved through legislative perfection.Sixth,the legislative perfection of China’s comprehensive working time should take into account the flexibility and safety of the system.In view of the current situation of excessive flexibility and insufficient safety,it can be divided into two levels: emphasizing safety,ensuring the most basic right to rest of workers,so that the rights and interests of workers will not be damaged by the implementation of the comprehensive working time;on this basis,employees can benefit from flexibility through rules that help them realize the requirements of working time autonomy and dignity.Only a comprehensive working time that benefits both employers and employees can contribute to the balance of labor relations and its flexibility can be sustainable.Seventh,the legislative improvement measures of China’s comprehensive working time can be divided into five aspects.Firstly,improve the working hour standard system to make it systematic,at the same time,in the quantification of relevant standards,ensure their connection with labor law and international labor standards.Specific measures include:limiting the time period,adding the maximum working time standards,canceling the average weekly working time standard and increasing the minimum rest time standards.Secondly,moderately liberalize the restrictions on the scope of application,and divide the applicable objects into posts that cannot implement the standard working time system due to the nature of production and natural conditions and workers who need to implement the comprehensive working time due to individual reasons,so as to set different application procedures.Thirdly,improving the corresponding procedural rules based on the principle of equal consultation.It can be divided into two types of rules.One is that for specific employees who need to implement the comprehensive working time(for non-specific posts),employers and employees can determine the comprehensive working time scheme through individual negotiation and agree it in the labor contract;the other is that for the posts that need to implement the comprehensive working time(for unspecified employees),the scheme needs to be determined by the labor and capital sides through collective negotiation and agreed in the collective contract.Fourth,reform the administrative license.It needs to be clear that the administrative license should be regarded as the post regulation of the government on the lack of self-regulation of both labor and capital,rather than the access restriction of the comprehensive working time.In addition to being a regulatory tool,it has more governance nature and needs to highlight its governance function.In terms of legal system,what we need to do most is to restrict and standardize government power with legalization as the requirement.Therefore,there are specific requirements for reform,including the unification of administrative licensing materials,the standardization of administrative licensing procedures,the openness of administrative licensing decisions,and the improvement of the post inspection and supervision system.Fifth,improve the supporting rules according to labor legal system.It includes the establishment of night work allowance,the restriction of continuous work,the establishment of special protection rules for female employees with the responsibility of taking care of the family and raising young children,the adjustment of the application rules of compensatory leave,and the necessary legal constraints on the working time management behavior of employers.In conclusion,the comprehensive working time challenges and impacts the legal protection framework of working time established by the standard working time system,which requires the labor legal system to take flexicurity as the value concept,comply with the flexibility needs of the workplace and respond in a timely manner.China should fully learn from the legal adjustment experience of the comprehensive working time in developed countries with market economy,in combination with the actual situation and institutional basis of China’s labor relations,timely correct the deficiencies in the current legal system,and provide stable rest rights and possible working time autonomy guarantee for employees on the basis of respecting flexibility,so as to promote the implementation of the comprehensive working time conducive to the common promotion of the rights and interests of both labor and capital,and contribute to the construction of harmony and sustainable labor relations.