| From the expression of Labor Law,the overtime system only applies to the circumstances where employers arrange employees to extend working hours.In practice,however,many enterprises drive the employees to "be forced to work overtime voluntarily" by setting unreasonable labor quota,concluding "voluntary overtime agreement" or otherwise for the purpose of avoiding overtime payment.Although an appropriate amount of "voluntary overtime" can maximize interests for all parties in labor negotiation,unlimited "voluntary overtime" will lead to the failure of the application of the overtime compensation mechanism,infringe upon the employees’ right to rest and physical and mental health,and bring negative changes to the social mindset.All these dangers show that it is necessary to regulate the phenomenon of "voluntary overtime".In such overtime disputes,the main focus of the dispute is whether overtime work is "arranged" or "voluntary".After reviewing judicial decisions and scholars’ opinions,we find differences between the identification standards of overtime,the determination of the validity of a "voluntary overtime agreement",and the allocation of burden of proof and standard of proof on overtime work,which have given rise to many legal disputes.In the absence of a verdict,the courts often give different rulings on the same cases,and both the employers and the employees lose guidance on what to do,thus exacerbating the spread of the phenomenon of "voluntary overtime".Therefore,it is necessary to explore the solution of the above legal disputes from the judicial and legislative levels,so as to regulate the unrestricted "voluntary overtime" disorder.At the judicial level,firstly,the identification of overtime work should proceed from form to substance.It should have the elements in time,of intention and of fact.The behavior of "voluntary overtime work" should be analyzed with the theory of implied intention.If the employer recognizes that the employee engages in the labor payment beyond the overtime working hours and creates profit for the enterprise,and does not object,but accepts further achievements,it can be determined that the employer tacitly recognizes the existence of the overtime.It can be classified into three circumstances: the employer’s expression of intention to request extrapolated overtime,the employer’s tacit tolerance to overtime,and excessive or impatient workload.Secondly,in nature,"voluntary overtime agreement" should be classified as a change to an employment contract,and its validity depends on the specific circumstances of the agreement conclusion and whether the specific contents of the agreement can fully meet the legal requirements for validity.Generally,the part of the exemption from legal liability for overtime pay in the agreement should be invalid.At the legislative level,firstly,in order to urge enterprises to effectively manage the working hours and provide sufficient evidence for the identification of overtime work,China may build the working time management system in the level of legislation by referring to comparative law.It includes imposing the obligation of employers to truthfully record working hours and properly keeping written documents,in order to cover the circumstance that "the factual evidence on overtime work shall be mastered by the employer".In view of remote labor,flexible working hour system and other flexible employment measures such as proposed working hour system and offline right may be adopted with the aid of communication technology tools to carry out flexible management arrangements.Even for the flexible working hour system,a working hour limit shall also be set.Secondly,in order to mitigate the bias of evidence caused by subordination and balance the gap in the evidence ability between the employer and the employee,it is suggested that the mechanism for the mitigation of the burden of proof shall be introduced into overtime dispute on the basis of establishing the employer’obligation to form evidence.If the facts of overtime work cannot be ascertained after the employee has fulfilled the responsibility of providing evidence,the arbitrator may presume that the facts of overtime work claimed by the employee are true,and the employer shall provide evidence to prove otherwise. |
