Research On The Problem Of Irregular Working Hour

The standard working system and the irregular working system is set up according to Labor Law.The irregular working systems helped improve competitiveness by raising production efficiency though,caused quite a lot number of labor disputes which focused on remuneration(overtime pay).Academic and Judicial circles has different views regarding work time limitation.Similar cases often ruled differently.The irregular working systems requires administrative prior approval,while it was not strictly followed due to variance in provincial prior approval procedure and administrative system.In real judicial cases,Judges recognize labor contract instead of administrative approval.Per production requirement,the irregular working system does not register start and end of the work in each workday and does not calculate everyday work time in defined circumstances according to law.Working time is flexible.Its labor quota refers to standard working system.Researchers found that our working system law and regulation has a well established structure which supported the demand of irregular working system.A few companies did not strictly follow the rules that caused labor disputes: for example,implementing irregular working system without prior approval or enlarged the scope of application.The dominant views holds in schools and in practice is that the irregular working system does not abide by the regulation posed on standard working system which is 8 hours per weekday and less than 40 hours per week.A number of Judicial decisions did not support overtime pay on weekday and weekend overtime.Besides arguments on understanding about work time limit for each working system,the irregular working system also faces challenges on improvement of Ex-ante regulation and Ex-post regulation.The argument is whether or not the irregular working system should comply with Maximum Man Hour standard.Maximum Man Hour standard has general force of law as legal imperative standard.Workers under the irregular working system enjoy equal rights of rest and rights of health.If their working time is not restricted by Maximum Man Hour standard,their rights of rest can not be assured,however,the right of rest is the fundamental right of a citizen which is the most important and essential right.By adopting the Maximum Man Hour standard,enterprises can not freely extend working time.Ensuring flexible working scheme,a red line is set up to stop enterprise demanding overtime as and when.Judicial Justice requests the irregular working system complying with Maximum Man Hour standard.The essential difference between the standard working system and those special working systems is the allocation of working time and free time during a period of time.The proportion of working time and free time under two systems are the same.Confirming the irregular working system complying with Maximum Man hour standard which is defined in Labor Law makes a general standard in judicial adjudication to avoid different judgement in same overtime pay cases so that workers are treated fairly and equally.This will pose pressure on enterprises who try to refuse paying overtime by wrongly using irregular working time.The real justice is accomplished.Workers under irregular working system work average 40 hours a week at maximum.To implement Maximum Man Hour standard in the irregular working system well should:(1)Its labor quota refers to the Standard working system labor quota;(2)establish and improve attendance records;(3)fix rest time.Ex-ante regulation of the irregular working system has some problems.The prior approval procedure varies by districts.A few local governments are lenient while a few are strict in approving the irregular working system.The root cause is they are pursuing their own interest.Being a special working system,the adoption of the irregular working system requires prior approval by local governments.A few companies did not conform to the regulation.They just use individual labor contract as an indication of the irregular working system.In addition to the prior approval compliance issue,the scope of application of the irregular working system is wide without clear boundary.The irregular working system ranged from executives to blue-collar workers,that is why a lot of labor disputes occurred.According to Tentative provisions of wage payment,the irregular working system does not adopt the overtime pay stipulation per Article 13.Enterprises can save up overtime pay,raise profits and become more competitive.It is good to local economic and society development.Prevailing regulations’ application scope is wide without clear definition of each position.Ministry of Human Resource and Social Security should make a catalogue of special working system positions with clear notes.Same time,unify special working system approval conditions nation wide.Using collective negotiation system,workers are knowing their duties sufficiently so that they can protect their interest.In judicial practice,it is hard to recognize workers’ overtime under irregular working system.The reason is: lack of clear recognition standard and difficulty in providing evidence by workers.Currently there is no provision of how to prove overtime fact and how detail the evidence should be.Responsibility of prove is unclear with different principles.The judges are often subjective and at discretion.Suggest to use Maximum Man Hour Standard as legislative authority to set up overtime recognition provisions and share proof responsibility fairly so that the overtime pay labor dispute can be trialed fairly and equally.Ex-post regulation of the irregular working systems should also enhance supervision of administrative approval.There is no administrative force in approving provisions of irregular working system.Labor Insurance and Supervision Institutes must plan monthly and yearly supervision and take routine supervision seriously.Focus on checking workers working time and rest time.Deal violations of labor law in order of priority.If there is any violations are criminal related found in investigation or supervision,they should be sent to judicial institutes accordingly.By establishing enterprise credit records,Labor Insurance and Supervision institutes can publish those significant noncompliance cases to public according to Law.It serves as deterrence to enterprises who made similar mistakes.To sum up,it is wrong to think that the irregular working system is a system with no time limit.”Flexible” does not mean unlimited,which however means no fixed time of duty on/off.Maximum Man Hour standard not only applies to Standard working system but the irregular working system also.Suggest legal authorities stick to the principle of Maximum Man Hour standard when resolving labor disputes to protect workers’ benefit,so that workers can be paid sufficiently and have proper rest.Those wrong doings in this area,such as misleading the principle or utilizing policy’s loophole can be corrected too.