CAO Yan*

 

Abstract: The popularity of flexible working hours around the world has slowed down the historical trend of reducing working hours.It even shows signs of regression. Whether and how to guide the current society with flexible working hours to return to the historical track of reducing working hours, improve the quality of working hours, and promote a smooth transition from the era of traditional standard working hours to the era of flexible working hours has become a question related to the legal regulation of working hours in the new era. In this regard, although Western countries have proposed new regulatory concepts and carried out legislative practices with distinctive characteristics, the limitations of legal regulation capabilities have prevented them from proposing a package of institutional solutions. The advantage of China in the ability of legal regulation of working hours has been gradually formed in the legislation on working hours under the leadership of the CPC in the past century. It enables China to break through the limitations of the West and propose a Chinese approach to answer the question of the legal regulation of working hours in the new era from three aspects: limiting the extension of working hours, improving the quality of flexible working hours, and optimizing the functions of the multi-functional regulatory system for working hours.

 

Keywords: question related to the legal regulation of working hours in the new era · flexible working hours · Chinese approach · decent working hours quality of working hours · working hours capability · balanced working hours

 

 

Karl Marx believed that human labor should have a high-level autonomy.¹ However, the advent of wage labor encouraged the capital to control working hours, and the non-autonomous labor to predominate labor relations for a long time. There is a tendency to extend working hours, the source of capital and profit. The social conflicts ensuing from dramatically cutting down the time of rest of the workers have made the reduction of working hours the core issue of modern labor relations, ushering in the development of labor law.² Research by the International Labor Organization (ILO) reveals that for most of the past century, legislation has led to a downward trend in hours of work, which moved in tandem with increases in wages and productivity, creating a virtuous cycle. In recent decades, however, this trend has stopped or even reversed in some cases. This has been accompanied by a bifurcation of working hours. The extension of working hours has staged a comeback in formal employment, while in informal employment, “mini-jobs” with excessively short hours are everywhere. This trend has impacted workers, predominantly women, to fall into poverty. With the continuous deepening of the employment crisis around the globe and the widespread use of new information and communication technology, there is a movement away from the standard workweek consisting of fixed working hours toward various forms of “flexible” working hours arrangements along with demands for extending working hours, which is increasingly erratic and unpredictable and results in strained relation between employees and employers. In view of this, how to readjust the legal regulation system in terms of working hours, get the modern world featuring flexible working hours back on track with the reduction of working hours, keep improving the quality of working hours, and ensure sustainable economic and social development has become the question related to the legal regulation of working hours in the new era.³

 

To this end, it is required to explain what efforts people have made in the history of legal regulation of working hours for the purpose of reducing working hours, what regularities have been sought out, what problems have been encountered, and what measures should be taken to keep promoting the historical trend of reducing working hours and improving the quality of working hours. The intellectual significance of solving these problems can be simply described from the perspective of academic research: The international research on legal regulation of working hours, despite a long history and solid foundation, mainly focuses on the development of laws and policies in Western developed countries and rarely on the theory and practice of legal regulation of working hours in developing countries, including China.

 

Over the past century, under the leadership of the Communist Party of China (CPC), the Chinese people have followed and promoted the historical trend of reducing working hours and explored a unique path of the rule of law for working hours. The purpose of this paper is to document the experience in developing the rule of law with Chinese characteristics in the language of scholarship, pool global intellectual resources to manage the challenges in the new era, seek for a total solution to the question related to the legal regulation of working hours in the new era, and explore the possible ways to improve the legal system in China. The analysis of the above problems and related situations is made from a historical and comparative perspective based on unique information and literature resources⁴ as per the following logic: First, this paper briefly reviews the development of the legal regulation of reducing working hours in the West from the historical point of view and expounds the main driving force of this historical trend and its institutional characteristics, summarizes the Western experience of answering the question related to the legal regulation of working hours in the new era by analyzing the dilemma and the countermeasures of legal regulation of working hours in Western society in the era of flexible working hours, and indicates the limitation of regulative capability; second, it clarifies the institutional logic of China’s rule of law on working hours by analyzing the historical context of CPC leading the legislation on working hours, and reveals the advantage of China’s legal regulation from the perspective of institutional history. Proving the national competence of legal regulation on working hours is the premise and guarantee of a package solution for China to break through the limitation of Western countries and solve the questions of legal regulation of working hours in a new era. On these grounds, it fully takes in and learns from the successful and good experiences of the Western countries and proposes a Chinese approach to solving the question according to China’s labor policies and national conditions in the new era.

 

 

 

It is widely believed that the advent of industrial capitalism was accompanied by the emergence of the modern concept of time and the increase in working hours.⁵ With the rise of early capitalist forms of social relations in the cloth-producing urban communes of medieval Europe in the system of “work bells”, a form of time emerged that was a measure of wage labor.⁶ Since then, the struggle for control over the length of working hours has become the focus of labor-capital conflict. For hundreds of years, employers have extended working hours beyond the limits of human physiology.⁷ A kind of “time tyranny” based on the freedom of contract and subordinate labor was constructed historically, which triggered the continuous and large-scale labor movement in Western society, resulting in violent social unrest. It compelled the capitalist regime to take legislative measures to limit working hours. Research by academics such as Philip Tucker of Swansea University, UK, and Leifur Magnusson, an American academic, shows that laws and decrees of factories restricting working hours emerged from the early days of the industrial revolution and lasted until the World War I.⁸ Its political motive was to limit the excessive spending of capital on labor, improve national physique, ensure the sustainable development of national human resources, boost national economic competitiveness and expand the military.⁹

 

Meanwhile, collective action by workers to fight for the reduction of working hours was gradually legalized. Governments in Western countries utilized both labor contracts and collective agreements involving adults and children workers to integrate legal systems for reducing working hours.¹⁰ In the late 19th century, driven by the collective action of workers, the social movement for the eight-hour work system was widely launched in the West. Magnusson believed that after the October Revolution in Russia, European countries, including Finland, Germany and Norway, in fear of the impact of the trade union movement, legalized the eight-hour work system,¹¹ making the collective action one of the core impetus for working hours reduction in Western societies.¹²

 

The combination of legislative intervention and collective action contributed to the slowdown of the unlimited increase of working hours since the 19th century, setting the stage for the ILO Convention No.1 in 1919 and thus setting the stage for the global working-hour standards legislation. After the World War I, a series of international labor conventions were enacted successively to shorten working hours. Unlike factory laws and decrees, the international labor conventions and recommendations take the lead in the modern working hours legislation with the principle that working hours system is a minimum human right that should not be measured by economic benefits.¹³ Although not all countries have ratified the conventions and recommendations, the vast majority of countries have set a national statutory baseline for working hours as per these standards. As a supplement, the specific working-hour standards formed by collective negotiation at all levels also have the effect of the normative standard after the legal identification. The total working hours in this period fell drastically. After the World War II, wages in the major industrial countries of the West rose in tandem with the reduction in the total working hours. The movement to reduce working hours entered a “golden age” that lasted until the mid-1970s.¹⁴

 

In conclusion, the historical trend of reducing working hours in the West in modern times is mainly driven by legislation and collective negotiation. Although collective negotiation plays a key role in setting up working-hour standards, whether collective negotiation can reach an agreement on the standard requires constantly narrowing the gaps between the two parties, i.e., labor unions’ demands for reducing working hours and redistributing job opportunities, and employers’ demands for more flexible human resource management authority. Meanwhile, the labor-capital contrast is also a decisive factor in whether collective bargaining leads to higher working-hour standards.¹⁵

 

 

This “golden age” of reducing working hours appears to have gone for good. The oil crises of the mid-1970s ushered in a new era featuring uncertain growth and rising unemployment. In response to the employment crisis, the statutory working-hour system, which used to be popular, is giving way to flexible working hours, which is on the rise. The working-hour is becoming more erratic, more diverse, fragmented and personalized. The flexible working hours system contributes to more calls for the deregulation of utilizing collective or individual agreements for the management of working hours, reigniting the trend of increasing working hours. The international community is moving away from the historical trajectory of reducing working hours.¹⁶ The defects and problems of the traditional legal regulation system of working hours exposed in response to these changes make people doubt whether the policy of reducing working hours can be carried out in the era of flexible working hours. These problems are mainly as follows.

 

 

The direct regulatory model of reducing the working hours of full-time workers failed to curb the increase in working hours. The in-depth studies by ILO’s experts on working hours and scholars, including Gerhard Bosch, have shown that the main factors for this dilemma are as follows: First, in the past 20 years, the direct regulatory model to reduce standard working hours adopted in some Western European countries resulted in short supply of total working hours. To cope with global competition, enterprises had to make up for the loss of time via overtime, which lead to rising wage costs, inflation and adverse effect on employment. People came to realize that only in a functionally flexible labor market where there is also an adequate supply of unemployed skilled workers will reductions in working hours not result in shortages of skilled labor and in overtime. Work redistribution policies will therefore be more difficult to implement in developing countries with an inadequate supply of unemployed skilled workers than in those where the supply of skilled workers is increased by the active labor market and training policies.¹⁷ Second, both the international labor standards and national legislation in some countries define rest as a derived “negative right”. In the era of flexible working hours and “deregulation”, the labor-capital imbalance has been further exacerbated, so if workers have no positive right to rest, but only a negative right to request that working hours not be increased, working hours are more likely to be increased.¹⁸ Third, in recent decades some Western industrial countries have reduced total working hours by expanding the scope of part-time work. However, as more and more women enter the labor market, the scope for expanding part-time work diminishes, and it is more likely that working hours will begin to rise again. Such a part-time trap, caused by an increase in the labor supply and possibly leading to rising unemployment, is created.¹⁹

 

 

The very short hours, defined as less than 15 to 20 hours per week and often referred to as marginal part-time employment, results in low-quality employment of women. As per the report of ILO, the proportion of women working very short hours is substantially higher than men in every single region of the world, especially in developing countries. Marginal part-time work is low-quality characterized by poor worker autonomy, irregular and unpredictable working hours, low pay, lack of social security, etc., which leads to female workers falling into poverty. As with part-time work in general, this situation is due primarily to women’s disproportionate burden of unpaid household and care work, which limits the extent of their participation in the paid labor force, resulting in “gender discrimination”.²⁰

 

 

The flexible working hours arrangements were becoming increasingly frequent over the past 20-odd years. While the flexible working hours system is popular with employers, it is not so popular with workers.²¹ The reason is, as the ILO report points out, that flexible working hours can be divided into employer-led flexibility and worker-led flexibility. The former means that employers arrange working hours flexibly in line with business requirements, while the latter is that workers have a certain right to choose or influence their working hours. Unfortunately, the former plays the leading role in the current trend of flexibility in working hours, which is inclined to trigger the conflict between flexibility and autonomy in working hours.²² The employer-led working-time flexibility has traditionally followed: old-style overtime and shift work, and later atypical working hours. The flexibility is achieved by varying the length of standard working hours (overtime), frequency (shifts), or labor intensity (atypical working hours).²³ In the information age, on-call work is perhaps the most extreme type of employer-led schedule. Working hours are often unpredictable and increasingly erratic, leaving workers trapped in financial difficulties and facing a crisis of underemployment. Due to algorithms, the workload of employees has increased, resulting in the intensification of working hours. Workers face more risks while earning less.²⁴

 

This raises the question of whether and how the world with flexible working hours goes back to the historical track of reducing working hours while improving the quality of work and promoting the smooth transition from the traditional standard working-time era to the flexible working hours era. It is the question related to the legal regulation of working hours in the new era.

 

 

 

To curb the abuse of flexible working hours by some countries and guide the international community back to the historical track of reducing working hours, some international organizations have put forward new ideas and policies to reconstruct the contemporary working-time regulation system since the 1990s, guiding the member states to switch these policy concepts into legal systems through their domestic legal practices, to align the flexible working hours trend with the historical trend of reducing working hours. Here are the representative policies.

 

The ILO has defined a concept of “decent working hours”. In the mid-1990s, John Messenger, an expert on working hours, suggested that the concept of “Decent Work” proposed by the ILO be applied to the regulatory system of working hours. The ILO has taken this suggestion and devoted research on policy making to promote “decent working hours” globally. This policy seeks to integrate multiple goals of reducing working hours through multiple principles developed from the policy concept of “decent work”, and set up a “package” regulatory framework capable of solving the contemporary regulatory problem in terms of working hours. These principles require that working-time arrangements should ensure workers’ health and safety, promote gender equality, keep employees’ work-life balance, and enhance workers’ time sovereignty while enhancing production efficiency.²⁵

 

The European Union (EU) has drawn up the policy of “improving the quality of working hours”. The EU policymakers have noted that a high-quality working-time policy should guarantee that the length of working hours is appropriate to ensure the health and safety of workers and focus on predictable working-time arrangements and the convenience for workers to balance work and personal life. It emphasizes that the legal regulation of working hours should limit the flexibility of standard working hours, as well as also the flexible working hours to enhance the predictability and stability of working-time arrangements.²⁶

 

Besides, in view of the “bifurcation” of working hours and the instability of working hours triggered by “digital labor”, the regulatory strategies proposed by some experts and scholars have been paid attention to and adopted by international organizations:

 

Marta Glowacka said the main reason for the failure of the flexible working hours policy in many countries of the contemporary era is that employers assume arbitrary power in the decision of flexible working hours arrangements. Therefore, he proposed the regulatory concept of balanced working hours and advocated a flexible working-hour regulation system based on the workers’ own accord, with productive flexibility compatible with workers’ time autonomy, capable of resolving the conflict between flexibility and autonomy and balancing the interests of labor and capital.²⁷

 

The theory of “working hours capability” advocated by Sangheon Lee, director of the Employment Policy Department of the ILO, provides a practical policy framework for better resolving labor-capital conflicts over time sovereignty, aiming to endow workers with the opportunity to choose and change working hours to improve their life quality. The policy framework offers two distinct but complementary regulatory approaches: one is to give workers the negative right to reject some flexible working-hour arrangements; the other is to endow workers with the positive right to arrange their working hours.²⁸

 

 

Since the 1990s, many Western countries have adopted various paths and approaches to deal with the challenges brought by flexible working hours, ushering in the reform of the traditional system of working hours regulation and answering the question related to the legal regulation of working hours in the new era. The author has categorized the comparative research literature of the ILO, the EU and other international organizations on these national practices and summarized the basic experience of Western countries in solving the “question in the new era” conveyed in the literature as follows:

 

(1) The statutory standard working-time system should remain at the very heart of the contemporary legal regulation system of working hours, and flexible working hours should be regulated on this reasonable basis. “The standard working-time system is out of fashion.” It seems to be the most fashionable slogan of the age of working hours flexibility. In October 2011, the ILO convened an international conference of labor, management and government representatives from around the world, in which the representatives debated whether mandatory baseline should remain at the heart of the legal regulation system for working hours. Labor representatives generally agreed that a mandatory baseline for standard working hours remained essential to protecting workers’ health and safety. The role of working hours legislation can only be replaced to a certain extent by collective bargaining and cannot be abandoned. However, in view of the trend of flexible working hours and the business demands of the information age, the employer representative maintained that a mandatory baseline makes the management of working hours complicated and inflexible. The working hours arrangement should be handed over to enterprises and individuals through negotiation to better meet the individual needs of employers and employees. Despite the huge gap between labor and capital, the government representative has rationally recognized that the statutory baseline system for working hours is not outdated, an opinion affirmed by the chairperson of the meeting. The chairperson further emphasized that it is necessary to strike a balance between flexibility and mandatory baseline.²⁹ This international debate has reaffirmed the core value of mandatory baseline in the ongoing historic drive to reduce working hours. In the next 10 years of practicing flexible working hours in various countries, the following views got proven correct: Only by introducing flexible working hours based on limiting the extension of working hours by mandatory baseline and implementing the reduction of working hours in parallel with the provision of corresponding wage compensation and the increase of hourly wages can the labor-capital balance of time sovereignty be achieved.³⁰ For achieving this balance, it is quite necessary to establish a set of systems for legal sources with both rigidity and flexibility.

 

(2) Proper regulatory models should be adopted to address the problem of overlong working hours. In the last few decades, the trend of extending working hours has re-emerged around the globe, causing a deviation from the historical trajectory of reducing working hours. For effectively curbing the regressive trend, the direct regulatory model of reducing the working hours under the statutory standard adopted by some European countries is increasingly being questioned under the social stress of intensifying economic competition and recession around the globe. People are more aware that the essence of reducing working hours is not to directly cut the maximum daily or weekly working hours, but to reduce the annual maximum working hours by cutting overtime, so as to guarantee the rest time of workers.³¹ As a result, more countries are focusing on the indirect regulatory model of reducing working hours by cutting overtime hours. However, as a negative right, the right to rest is difficult to be effectively protected, which is the shortcoming of an indirect regulatory model. The European Charter of Fundamental Rights provides a valuable reference: Article 31 (2) stipulates that every worker has the right to a limited maximum of weekly working hours. Some European countries protect workers’ right to rest by giving them the right to veto overtime. In terms of ensuring rest time, the European Union Working Time Directive has set a good example. Article 5 of Directive 2003/88/EC specifically states that all workers should have adequate rest periods and that rest periods must be broken down into units of time. It designated the specific units of time that must be used to determine rest periods, thus negating any lack of clarity or vagueness that may have existed in the national laws of the EU member states prior to the approval and implementation of the Working Time Directive.³²

 

(3) The quality of working hours for “part-time work” should be improved through a mandatory working hours baseline. It is a challenge for the international community to ensure the quality of working hours for “part-time work”, including marginal part-time employers, through responsible employment policies. The ILO’s research report summarizes the effective regulatory measures taken by countries around the world as follows: Under the premise of strictly restricting the increase of standard working hours, countries should provide a mandatory baseline guarantee of minimum working hours for all forms of “part-time work”, impose penalties for violations of the baseline, and implement it together with the policy of raising the wage level of “part-time work”; the employers have a statutory obligation to give workers advance notice of working hours arrangements; the employers should provide proportionate paid leave for “part-time workers” in accordance with the treatment of full-time workers; legislation should provide workers engaged in various forms of “part-time workers” with the option to transfer to regular employment, etc. The implementation of these regulations can offset the negative effects of “over-short working hours” and avoid the “time trap” of part-time work.³³

 

(4) Measures of flexibility and autonomy should be adopted to resolve the labor-capital conflict of “time sovereignty” under the trend of flexible working hours. The studies of legislative cases by countries have discovered that there are two kinds of regulation experiences worth referencing to solve this problem: First, endowing workers with the positive right to influence the working hours arrangement; second, endowing the workers with the negative right to refuse the unreasonable working hours arrangement. The former is represented by such European countries as the Netherlands and Germany. The Netherlands enacted the Working Hours Adjustment Act in July 2000, giving workers the right to adjust their working hours, including extending or reducing working hours, through collective bargaining. With the power of labor unions and collective bargaining at various levels, Germany extensively implements the “Plan of Working Hours Bank”, giving workers more flexible and extensive options for time.³⁴ The latter is represented by Finland and France. Finland has enacted a decree endowing workers with the right to refuse overtime and night work.³⁵ France made the legislation on the “right to discontent” in 2017 that specifies the time slots during which companies are forbidden to require employees to send or respond to emails to prevent employees working 24/7 due to the ease of information technology.³⁶

 

 

Although Western society has put forward a variety of governance concepts and policy frameworks in an attempt to alleviate the impact of flexible working hours on the traditional legal regulation system of working hours, it only provides a functional frame of reference and multiple possibilities for institutional design and evaluation, instead of stipulating any substantive right. The comprehensive objectives of governance proposed by these policies depend on the implementation of a package of institutional solutions to achieve the comprehensive governance of traditional standard working hours and flexible working hours. However, the working hours legislation in Western society is increasingly loose, and the legal regulation of working hours is increasingly dependent on collective bargaining³⁷. But the decline of labor union organization efficiency and the weakening of bargaining capability have impacted the stability and effectiveness of legal regulations on working hours, highlighting the weakening of legal regulations on working hours in Western countries. Meanwhile, the complex relationship between governments and trade unions in Western countries makes the governments stay cautious intervening in collective bargaining. As a result, Western countries have been avoiding putting forward a package of legal solutions that integrate the interests of all parties in society and comprehensively address the problem of contemporary working hours.

 

 

 

Although the development of capitalist wage labor in China happened later than the West due to historical reasons, the Chinese people, under the leadership of the CPC, have been thrown into the international labor movement for the eight-hour day working system since the beginning of the last century. Over the past century, whether it was the revolutionary period, the construction period, or the journey of reform and opening-up, the Chinese people under the leadership of the CPC have been pushing forward the historical trend of reducing working hours. The history of working-time legislation in China under the leadership of the CPC resonates with the progress of reducing working hours in the world. In the 100 years of rapid changes in Chinese society, the basic principle of working hours legislation led by the CPC was gradually established. Based on the correct judgment of the needs in various historical stages of China’s social revolution and construction, the CPC formulated correct guidelines and policies, continuously developed and improved the legal system for working hours in accordance with legal procedures, and created a road different from that of Western societies.³⁸ In sharp contrast to the development of the rule of law in Western countries, the fundamental characteristics and the practical logic throughout the working hours legislation in China lie in the solidarity of the working class and the people worldwide under the leadership of the CPC, to nurture a spirit of unity and perseverance, driving the historical trend of reducing working hours. The century-long history of CPC’s leadership in working hours legislation in China and its successful experience have proved the advantage of national capability in the legal regulation in this field, and provided the premise and guarantee for a Chinese approach to handling the global difficulties in working-hour legal regulation. These successful experiences are mainly reflected in the following aspects.

 

 

The CPC can properly grasp the basic law of the development of the rule of law in working hours of China, accurately judge the characteristics of eras and the necessity, timeliness and appropriateness of legal regulations in working hours, and always balance its policies and the working hours legislation, forming the practice logic of working hours on the road of the rule of law in China. It can be illustrated by the century-old practice of the CPC for China’s working hours legislation.

 

The Second National Congress of the CPC in 1922 made the fine judgment of the then-attribute of China’s semi-colonial and semi-feudal society, and took anti-imperialism and anti-feudalism as the goal of the workers’ movement.³⁹ It adhered to the unity of laborers’ rights and interests with the welfare of the whole society, promoted the labor legislation movement marked by the eight-hour working system, and creatively combined Marxist theory with the Chinese labor movement. On the basis of the experience of the international campaign to reduce working hours and the practice of the Chinese labor movement, The Resolution on the Outline of the Labor Law was passed, revising policies that went beyond the reality of Chinese society in the programmatic documents of the early labor legislation movement, and formulating a legislative framework for working hours, including the eight-hour standard working hours system, restrictions on overtime, and special protection for female workers and children.⁴⁰ It formed a banner calling on the masses of workers and peasants to join the Revolution and opened up the Chinese road of working-time legislation under the leadership of the CPC.

 

After the failure of the Great Revolution, the Chinese revolution entered the stage of agrarian revolution. With the establishment of the Soviet regime, the working hours legislation was transformed from a weapon to promote the labor movement into a key part of the security system for people’s livelihood in the Soviet area.⁴¹ After the Chinese Revolution entered into the period of Comprehensive Anti-Japanese War, to consolidate and expand the Chinese United Front against Japanese Aggression and attract capitalists to run industries in the revolutionary base areas, the CPC adjusted its labor policy from focusing only on the protection of labor rights during the agrarian revolution to taking into account the interests of the middle class. Moreover, to adapt the production and operation of enterprises to the needs of war preparedness, the working hours legislation was flexible: for example, it no longer worked on the mandatory and unified implementation of the eight-hour working system, loosened the control on overtime, or reduced excessive leaves.⁴² This trend continued until the period of the Liberation War.⁴³

 

During the period of socialist revolution and construction, the CPC formulated the economic construction policy in the transitional period of New China, which was to develop production and boost the economy through the policies of “balancing public and private interests, combining labor and capital, providing mutual assistance between urban and rural areas, and making internal and external exchanges”.⁴⁴ For the purpose of resisting unemployment,⁴⁵ safeguarding safety in production and promoting the integration of work and rest,⁴⁶ and starting with the objection of the bureaucracy that ignores the rights of workers⁴⁷ and the opposition of wasting working hours, it, with enterprises as the pilot, widely implemented nationwide the eight-hour working system,⁴⁸ established an indirect regulatory model to reduce working hours with a strict limit on overtime at the core,⁴⁹ and set up a working hours regulatory mechanism with labor quota at the core and strong color of the planned economy.⁵⁰ 

 

During the period of reform and opening-up and socialist modernization, the CPC and the government timely adjusted the traditional policies of the planned economy and embarked on a historic stage of reform and opening-up of the market economy system with the reform of state-owned enterprises at the core. On December 21, 1993, the Ministry of Labor issued the Notice on the General Plan for the Reform of the Labor System in the Period of Establishing a Socialist Market Economic System, which defined the general goal of the labor policy in the period of economic transition, i.e., the establishment of a new socialist labor system. Its basic feature was to make a labor management system in which market mechanisms such as contracts play a fundamental role in the labor market. It stipulated that working conditions, including working hours, should be determined through labor-management consultation in the form of labor contract and collective contract.⁵¹ Under the guidance of these policies, China’s working hours legislation has gradually transformed from government regulation in the planned economic system to market autonomy. A market-oriented working hours regulatory model is taking shape, which combines mandatory baseline and labor-capital autonomy. First, the responsibility of labor protection directly undertaken by the government to workers due to the “separation of government and enterprise” is transformed into the economic responsibility and legal responsibility of enterprises. Through institutional measures such as labor supervision and democratic management of enterprises, the government urges enterprises to fulfill their economic and legal responsibilities, indirectly protecting the rights and interests of labors.⁵² Second, the basic framework of the legal system of labor baseline of working hours, rest and leave is established. The Labor Law of the People’s Republic of China (implemented on December 29, 2018, hereinafter referred to as the Labor Law) establishes the statutory standard working hours system of no more than 8 hours per day and no more than 44 hours per week. The indirect regulatory model with limitation of the extension of working hours at the core is established. The workers are endowed with the right to leave, including public leave, paid annual leave, marriage and funeral leave, family leave, etc. Special protection is provided for female and underage workers.⁵³ In the end, a legal framework for pluralistic working hours based on the market mechanism is established. The Labor Contract Law of the People’s Republic of China (implemented on January 1, 2008, and amended on December 28, 2012, hereinafter referred to as the Labor Contract Law) sets working hours, rest and leave as one of the required terms in labor contracts and collective contracts (Articles 17 and 51), allowing labor and capital to set working-hour standard above the statutory baseline through individual agreement and collective negotiation. The basic role of the market mechanism in the formation of the working-hour standard is clarified. Meanwhile, the labor quota system is retained as an important basis for state-owned enterprises to determine the working-hour standard and an important administrative means for the government to regulate the working-hour standard. Thus, China’s pluralistic working-time legal regulation system basically took shape: the statutory baseline of the standard working hours determines the threshold; the labor-capital agreement is set above the statutory baseline to form a “market condition” of working-hour standard relying on the market mechanism; administrative regulation is in between, balancing the “tension” between legal baseline and market mechanisms for working hours.

 

 

The CPC-led working hours legislation has always protected the interests of the overwhelming majority of the people, which is the fundamental impetus for China to continue working hours on the path of the rule of law.

 

China’s trade unions consciously follow the leadership of the CPC as stipulated by Constitution, Trade Union Law and the regulations of trade unions. A hundred years ago, the CPC clarified the anti-imperialist and anti-feudal political program, which included “the eight-hour working system” and could call on and mobilize the workers and peasants, who accounted for the vast majority of the Chinese population, to join the revolution. At each of the subsequent historical stages, the CPC has always made the working-time policies and legislation as per the interests of the general public, with the real demands of the people in different historical stages as the starting point and implementing and reflecting the “people-centered” legislative concept. Ever since its establishment, China’s trade unions have consciously followed the leadership of the CPC. Most Chinese working class came from peasants and craftsmen, with extensive connections with the vast masses of peasants, establishing revolutionary allies sharing weal and woe.⁵⁴ It determines that from the very beginning, the campaign of working hours reduction launched by the Chinese working class was not purely an economic struggle for its own interests, but a political struggle for the human rights of the Chinese toiling masses. Since the founding of the People’s Republic of China, China’s trade unions have consciously followed the leadership of the CPC while protecting the rights and interests of workers and taken responsibility for workers, and closely integrated the implementation of the CPC’s policies with the reflection of the wishes of the working people. By means of trade union resolutions, policies and such, the CPC’s policies, lines, principles and deployments are transformed into conscious actions of trade union organizations and the general masses of managers workers.⁵⁵ It highlights the essential difference between the labor union of China and the West, which shows that China’s legal regulation of working hours is capable of unifying the CPC’s leadership with the protection of the rights and interests of working people. Therefore, the policy is markedly different from that of Western countries when bourgeois parties were forced to push for reduction under the pressure of social movements and labor-capital conflicts, i.e., China’s trade unions consciously take the leadership of the CPC and protect the interests of the great masses by implementing the CPC’s working hours policies and the national working hours legal system, so that China’s working hours policies and laws can win the support of the broad masses of the people, and create a fundamental driving force for the steady progress of the rule of law in working hours with Chinese characteristics.

 

 

China’s working hours legislation always adheres to the Marxist concept of labor, holding that labor is the basic right of human beings and the cornerstone of human rights, and reflects human dignity. The CPC sticks to the ideological tradition of Marxism with respect to labor, creatively combines Marxist theory with the practice of China’s working hours legislation, integrates the Marxist concept of labor into the working hours policy and legal system of China, forsakes the ideological tradition of Western political philosophy in discriminating against labor, and takes the protection of the human rights and well-being of the greatest number of people as the overall goal of working hours policy and legislation. As long as we take this as our purpose, we can gather the strength of the people and provide the endless driving force for continuous and steady progress on the legal path of working hours in China. The Chinese road of working hours legal regulation is formed by the Chinese people under the strong leadership of the CPC and after centuries of painstaking exploration of China’s revolution and construction. It is an independent legal road of working hours based on China’s national conditions. However, it does not mean that we cannot learn from foreign experience. As Comrade Peng Zhen pointed out, capitalist management, like the production process it manages, has the duality, and the experience of “universal applicability” that reflects social mass production should be used for reference.⁵⁶ Since the reform and opening-up, China has been developing its working time legislation independently while creatively combining international experience with local practice for continuous self-improvement and innovation.

 

In conclusion, the legal path of working hours under the leadership of the CPC shows the unique advantage of China’s legal regulation in working hours, i.e., labor unions consciously take the leadership of the CPC and the government. The government enacts working hours policies for people’s well-being. The working hours legislation always keeps pace with the working hours policy. The legal regulation of working hours always focuses on the real demands of people, keeps pace with the era, and efficiently solves the hard problems of working hours regulation in each historical stage, which can be widely supported by the public to create the basic driving force that continuously pushes forward the historical progress of reducing working hours in China. China’s advantage of working hours legal regulation enables China to break through the limitation of Western countries while fully taking in and learning from the experience of Western countries, proposing a package of solutions for solving the legal problems of working hours in the new era.

 

 

Since the 19th National Congress of the CPC, China has given high priority to employment and pursued a proactive employment policy, striving to achieve fuller employment and create better quality jobs, which has become one of the core objectives of the government’s policy of improving people’s well-being in the new era.⁵⁷ Building harmonious labor relations with Chinese characteristics is a basic guarantee for higher quality and fuller employment.⁵⁸ The Opinions on Building Harmonious Labor Relations ([2015] 10, issued on March 21, 2015) issued by the Central Committee of the Communist Party of China and the State Council emphasized that overtime work should be restricted, the workers’ right to rest and leave should be effectively guaranteed, and special working hours system and labor quota standard should be perfected, as a basic objective of perfecting China’s legal regulation system in working hours.⁵⁹ In order to cope with the increasing economic downward, the Opinions of the State Council on Further Improving the Stable Employment ([2019] 28. Issued on February 24, 2019) put forward the policy of flexible working hours to promote employment.⁶⁰ These policy measures show that flexible working hours system is an important measure to promote employment in China. Like other countries in the 21st century, China is encountered with the question of the new era in working hours legal regulation, i.e., how to make a smooth transition from the traditional standard working hours system to the era of flexible working hours. In response to this theme, we should follow the system logic of legal regulations of working hours, adhere to the leadership of the CPC, keep the coordination of policies and legislation, gain international experience in the development of the rule of law of working hours, fully pool local resources, and explore the construction path of a package of institutional solutions.

 

 

Overtime work is a stumbling block to the implementation of the policy of reducing working hours. In recent years, the “996 work schedule”, “715 work schedule” and other ultra-long overtime work phenomena have become increasingly common. What regulatory model should be adopted to reduce working hours? The ILO’s Recommendation for Shortening Working Hours 1962 stresses that countries should take measures to reduce the tendency to extend normal working hours. But in terms of a direct reduction in the standard working hours, the Recommendation only requires countries to take measures in line with their national conditions and gradually implement them without lowering wages.⁶¹ It shows that the ILO is cautious about directly reducing the standard working hours. The regulatory dilemma caused by the direct regulatory model of reducing standard working hours in France and such countries mentioned above confirms the correctness of the ILO’s understanding of this problem. From the history of working hours legislation in China, it can be seen that after the founding of the People’s Republic of China, in view of the policies of “safety in production” and “combination of work and rest”, the working hours legislation of China has been adopting the indirect regulatory model of restricting overtime and implementing workers’ right to rest and leave. The domestic and international experiences show that China should insist on the indirect regulatory model by limiting the extension of working hours at the core rather than the direct regulatory model, which reduces the standard working hours.

 

However, the success of the indirect regulatory model depends on whether overtime can be effectively restricted. However, China’s Labor Law and related supporting administrative policies stipulate the basic system of limiting the extension of working hours under mandatory standards, which is ineffective. From the perspective of system design, the main defects are the lack of reasonable working hours arrangement and a positive system of protecting the right to rest. The aforementioned international experiences show that the construction of active legislation on the protection of the right to rest depends on setting the mandatory baseline of rest time, endowing workers with the initiative to reject illegal overtime arrangements.

 

The rest time stipulated in Labor Standards Act mainly includes rest time during working hours (short break), continuous rest time beyond working hours (daily rest time), the weekly rest day and paid vacation time. The International Labor Conventions and the legislation of quite a few ILO member countries have clearly stipulated the maximum working hours per week, weekly rest day and paid annual leave, but ignored the standard of daily rest time, which is quite inconvenient for limiting daily overtime. The reason for this is that the rest time stipulated in Labor Standards Act has the legal implication of compulsory rest. The employers shall not impose labor obligations on the workers during this period, otherwise shall bear the liability. If there is no statutory standard for mandatory rest, the employer may, within the maximum number of working hours per day and beyond the standard working hours, arrange overtime at will in the rest time that the worker is supposed to have. For example, workers on a “nine-to-five” schedule are required to work overtime from 20:00 to 23:00 after taking a three-hour break at the workplace following their normal working hours. Although the maximum number of working hours on that day may not exceed the statutory maximum working hours, the rest period of workers is segmented, resulting in inadequate rest for workers. Meanwhile, workers are confined to the workplace for as long as 14 hours. In order to prevent it from happening, some countries specify in Labor Standards Act the span of daily rest time. For example, Germany stipulates that employees shall have at least 11 hours of uninterrupted rest following their daily working hours.⁶² Accordingly, unless there is a statutory exception or otherwise agreed by the collective agreement, it is illegal to arrange overtime within the statutory rest period. The laborer has the right to refuse such illegal overtime arrangements.

 

There is no statutory daily rest time in China’s Labor Law, which makes it difficult to define the daily working hours, non-working hours and rest time. The rest time fails to be clarified, and the workers’ right to rest is a kind of generative right subordinate to work at most. In this regard, Chen Jingyuan and other scholars suggested learning from the legislative experience of the European Union and providing the statutory minimum time limit for continuous daily rest and breaks within work hours for autonomous workers.⁶³ The author holds that in line with the current legislation of some countries and the research results of the ILO, this proposal can be expanded to involve general workers and set a mandatory baseline of rest time based on the situation of restricting overtime work in China.

 

Besides, whether laborers can have the autonomy to rest time is also a key issue in solving the overtime problem. As noted above, European countries have dealt with this problem mainly by giving workers the right to reject unreasonable overtime arrangements, but it tends to be premised on having a mandatory baseline for rest time. However, China’s current legislation does not provide enough institutional protection in this regard. According to Article 41 of China’s Labor Law and articles 24 and 35 of the Labor Contract Law, the extension of working hours should be agreed upon by the labor and management. If no agreement can be reached, Article 31 of the Labor Contract Law only requires employers not to force employees to work overtime. Moreover, the laws fail to explicitly list the legal reasons for allowing employers to extend working hours, but just generalize the reason as “required for production and operation”, which provides convenience for employers to increase working hours at will. As a result, some employers rack their wits about the “striver agreement”, “approval-based overtime” and such forms, imposing illegally “forced overtime” in the name of “voluntariness” of the employees. Although the Supreme People’s Court has exposed typical cases indicating the illegality of such practices, it just provides an ineffective solution.⁶⁴

 

In order to make effective governance on overtime, it is necessary to add the mandatory standard regulation of rest time in the Chapter “Working Hours, Rest and Vacations” of the Labor Law of People’s Republic of China. Furthermore, since Article 31 of the Labor Contract Law has already stated that forced overtime work is prohibited, it may be better to go further and grant workers the right to refuse overtime work in general, within the mandatory baseline of rest time specified in the Labor Law, unless otherwise agreed upon in legal circumstances or in collective agreements, to ensure the workers’ right to rest and curb the trend of working hours being extended. Meanwhile, to effectively limit the increase of working hours beyond the statutory rest time, we can learn from the mature experience of foreign countries, strictly standardize the labor-capital agreement procedures for the extension of working hours, make written requirements on the form of agreement,⁶⁵ and limit the employers’ discretion in determining overtime.

 

 

Although the Labor Law, the Labor Contract Law and the supporting laws and regulations of China stipulate three flexible working hours baseline, i.e., the comprehensive calculation working hours system, the irregular working hours system and the part-time working, the standard is rather simple. Meanwhile, it lacks standards for such unstable working hours as on-call work operated by the current computer platform, which results in the coexistence of “over-long”, “over-short” and “unstable” flexible working hours. We have to integrate various regulatory means to provide a package of institutional solutions.

 

International experience shows that the prerequisite for the successful implementation of a flexible working hours system is to effectively limit the extension of standard working hours. Therefore, the premise of the construction of the legal regulation system of flexible working hours is to strictly limit the extension of standard working hours of formal employment, and to ensure that the setting of the flexible working hours baseline and the wage treatment increase in sync. On this basis, referring to the international experience, the normative design should be made as per different flexible working hours: 

 

First, improve rest time guarantee system of our country’s comprehensive working hours system. The comprehensive calculation working hours system, known as “deformative working hours” abroad, is a flexible working hours arrangement that equalizes the total working hours in a long period of time to a short period of time. The biggest feature of the system is “concentrated work and rest”. As a result of the centralized work, the daily working hours often exceed the legal working hours, and laborers are not allowed to take compensated rest, resulting in excessive labor intensity. Therefore, how to guarantee the laborers’ right to rest becomes the core issue of regulating deformative working hours. In response, some countries require shift work during concentrated working hours, and strictly limit the length of the reference period and maximum working hours to ensure the laborers’ right to rest.⁶⁶ This is an effective measure worth drawing lessons from.

 

Second, the irregular working hours system is a flexible working hours arrangement in which laborers decide the start and end of working hours independently and their wages are determined by the working achievement. The most important feature is that the length of working hours is controlled by the laborers themselves, but the wage is not determined by the length of working hours. The achievement-oriented working hours arrangement makes it impossible to evaluate the achievement of laborers directly through working hours, which is liable to trigger disputes. In foreign countries, flexible working hours programs such as working hours banks are implemented through collective agreements at the industrial or corporate level. As scholars such as Wang Qian have pointed out, the introduction of such a system must be based on the active action of trade unions and effective collective bargaining.⁶⁷ There are no obvious obstacles to the implementation of the Plan of Working Hours Bank in China in terms of law and system design. The All-China Federation of Trade Unions and the trade union organizations of various levels are vigorously carrying out collective negotiations on wages, which provide the opportunity and path to bring this flexible working hours plan into the scope of our country’s collective negotiation and collective contract. At present, working hours system is not directly involved in collective bargaining. However, according to Article 51 of the Labor Contract Law, working hours are the result of collective bargaining and collective contract like wages, and working hours system is also the measure of the value of wages. Therefore, the inclusion of working hours in collective wage negotiation is free of institutional obstacles and convenient to be carried out in practice. Of course, as Dr. Chen Jingyuan is concerned, there is still a gap between the level of collective bargaining in China and the level required for the introduction of the Plan of Working Hours Bank. Therefore, legislative reform should focus on improving the mandatory baseline of the right to rest for laborers with irregular working hours. To this end, she suggested that the feasible way to design the system is to ensure the minimum time of weekly and daily leave for laborers with irregular working hours, and to require employers to assume the obligation of reasonable workload and total working hours.⁶⁸

 

Third, as for the part-time work, the Labor Contract Law of the People’s Republic of China limits only the maximum working hours of part-time work, but does not stipulate the guarantee of the minimum working hours, nor does it give laborers in the formal employment sector the right to choice between full-time work and part-time work, which is detrimental to improving the quality of part-time work. For preventing the over-short part-time work from turning into short-term hired labor, the minimum working hours should be added to the provisions of part-time labor contracts in the Labor Contract Law. To avoid discrimination against part-time laborers and making it easier for laborers engaged in regular labor to balance work and family life, we can consider granting laborers the right protection system of conversion between full-time work and part-time work in the changes of the labor contract, so as to improve the quality of part-time working hours in China effectively.

 

Last, as for such unstable labor forms as on-call work, we can learn from international experience, integrate positive rights and negative rights, and provide a package of solutions: On the one hand, by means of industrial, regional, or corporate collective bargaining, the construction of the collective agreement framework that gives the laborers engaging in unstable jobs the right to arrange working hours, rest and vacation independently; on the other hand, according to the labor baseline system of the Labor Law, such standard systems as advance warning of working hours, the guarantee of minimum working hours, and guarantee of minimum wages are provided for these types of work in the form of special provisions. Meanwhile, the system design of “right to discontent” is also adopted to restrict the employer from calling on or contacting the laborers to work during the statutory rest time, so as to ensure the laborers’ right to rest.

 

 

Similar to international experience, China has established multiple legal regulation systems of working hours featuring “trinity” of mandatory baseline, labor-capital consultation and labor administrative guidance. In terms of how the era of flexible working hours better plays its role, Professor Zhao Hongmei proposed a solution: On the basis of the mandatory baseline of flexible working hours, the subjects in the extensive use of flexible working hours, including platform employment, should undertake the obligation to conscientiously implement the legal obligations of working hours by legislation and through industrial collective agreements, industrial regulations and enterprise’s labor rules and regulations. If the employer does not fulfill the above statutory obligations, in addition to bearing the corresponding legal responsibilities, the government department can exert pressure on the employer by means of administrative guidance, industry advice or public disclosure and other administrative means to urge the employer to implement the national working hours baseline in accordance with the law.⁶⁹

 

Besides, it is worth mentioning that state-owned enterprises in China continue to use some planned management, which makes the market mechanism and the planned mechanism coexist in the operation of labor relations. While respecting the long-term tradition formed in state-owned enterprises and further improving the labor quota and other means of administrative management in working hours, we should consider combining the administrative management of labor quota with the industrial and regional collective bargaining mechanism in due time, to establish the market-based labor quota determination mechanism with Chinese characteristics.

 

 

Since modern times, the historical trend of reducing working hours in the West has been mainly driven by legislation and collective bargaining. The ILO has contributed to the widespread establishment of a statutory standard working hours system worldwide. However, since the mid-1970s, flexible working hours system has been widely applied in work, resulting in a variety of problems of working hours regulation caused by “over-long”, “over-short” and “unstable” working hours. The defects exposed by the traditional standard working hours regulation system in response to these changes raise the question of whether and how to guide the current world with flexible working hours to return to the historical track of reducing working hours while improving the quality of working hours, to promote the smooth transition from the traditional standard working hours to the flexible working hours, and become the “question of the new era” for the legal regulation of working hours.

 

In order to solve the “question of the new era” of the legal regulation on working hours, the international community has proposed policy concepts and regulatory frameworks, including “Decent Working Hours”, “Improving Working-Time Quality”, “Balanced Working Hours”, and “Working Hours Capability”. Based on the experience of domestic legal development, major Western industrial countries put forward specific solutions to solve the “question of the new era”. The basic experiences are as follows: The regulation purpose of reducing working hours is realized through the indirect regulatory model of limiting overtime; flexible working hours system is reasonably regulated on the basis of limiting the extension of standard working hours; the quality of working hours for “part-time laborers” is ensured and improved through mandatory working hours baseline; measures compatible with flexibility and autonomy are adopted to improve the time sovereignty of unstable laborers. The comprehensive governance objectives of such policies require member states to provide a package of institutional solutions for implementation. However, the social pressure of “deregulation”, the decline of labor union organization rate and the weakening of negotiating power have hurt the two major driving forces for the development of the rule of law in Western countries, leading to the decline of the national ability of legal regulation. For this reason, Western countries have been avoiding the “question of the new era” of adopting a package plan to solve the legal regulations of working hours.

 

In stark contrast to the West, China’s national competence in the legal regulation of working hours provides the premise and basis for the construction of a Chinese approach to solving the problems in the era of legal working hours. This advantage has been gradually formed and proved in the century-long process of China’s working hours legislation under the leadership of the CPC. The unique advantage of China’s working-time legal regulation is that the labor unions consciously follow the leadership of the CPC and the government, so that the government’s working hours policy for the well-being of the people can get widespread support of the people. Legal regulation of working hours has always been centered on the real needs of the people, keeps pace with the era, and efficiently solves the hard problems of working hours regulation in each historical stage, which are widely supported by the public to create the basic driving force that continuously pushes forward the historical progress of reducing working hours in China. China’s advantage of working hours legal regulation enables China to break through the limitation of Western countries while fully taking in and learning from the experience of Western countries, proposing a package of solutions for solving the legal problems of working hours in the new era.

 

First, we should adhere to take the working hours system with statutory standard at the core, adopt indirect regulatory model, and build a positive system to protect the right to rest, so as to effectively solve the problem of “over-long working hours”.

 

Second, on the premise of ensuring the synchronous increase of flexible working hours baseline and wage treatment, the following measures should be taken to improve the quality of flexible working hours: 1. Improve the rest time guarantee system of comprehensive calculation working hours system and limit its intensity; 2. At the corporate level, flexible working hours program such as working hours bank should be introduced through collective negotiation mechanism, and the compulsory standard of rest right of workers with irregular working hours should be improved to limit the labor intensity of irregular working hours; 3. In the baseline legislation of part-time working hours, we should add the guarantee system of minimum working hours and give laborers the option to convert between full-time work and part-time work in the labor contract, thus effectively improving the quality of part-time working hours in China; 4. In order to solve the problem of unstable working hours, on the one hand, workers can be granted the right to independently arrange working hours, rest and vacation through collective negotiation at the industrial, regional or corporate level. On the other hand, according to the special regulations of the labor baseline, it will stipulate mandatory regulations such as advance notice of working hours, the guarantee of minimum working hours, and guarantee of minimum wage for the employment of unstable labor, and guarantee the rest rights of workers who are contacted through digital platforms by drawing on the system design of “right to discontent”.

 

Last, in order to optimize the function of the legal regulation system on working hours in China, we can consider: 1. Through administrative guidance and other administrative means, supervise and urge platform enterprises that widely use flexible working hours to formulate industry rules, collective agreements, internal labor rules and regulations, and implement the legal standard of working hours; 2. We should combine the administrative management of labor quota with the industrial and regional collective consultation mechanism to establish a market-oriented labor quota determination mechanism with Chinese characteristics.

 

(Translated by XU Chao)

 

* CAO Yan ( 曹燕 ), Professor of the School of Economics Law in the Northwest University of Politics and Law, part-time Researcher in the Center for Human Rights Studies, Doctor of Laws. (This paper is funded by the National Social Science Fund of China (Western Region Program) “Research on Improving the Quality of Legislation in China on Rest and Vacation from a Global Perspective” (Project Approval Number: 19XFX014).

 

1. Karl Marx, Das Kapital, vol. 1 (Beijing: People’s Publishing House, 2004), 207-208.

 

2. Adam, 1993, page 166, quoted from Ronald J. Burke edited, Research Companion to Working Time and Work Addiction (Northampton: Edward Elgar Publishing, Inc., USA, 2006), 5; JeanYves Boulin, Michel Lallement, Jon. C. Messenger and Fran?ois Michonne dir., “Decent Working Time, New Trends, New Issues”, International Labor Office, Pv, 2006. fflialshs-00311150f.

 

3. Jon Messenger, “Working Time and the Future of Work”, Geneva, ILO, 2018, Abstract, page 1-2; Mitchell R. Hovey and A. David Kline edited, The Value of Time and Leisure in a World of Work (Chicago: Lexington Books, 2010), 1.

 

4. Legal research on working hours runs a long course in Western industrial countries, and has distinct national features. As an international organization that continues to promote the campaign to reduce working hours around the world, the ILO has invested a lot of resources in this field, and its research results are quite substantial and authoritative. For instance, Jon C. Messenger and others have carried out special research on the global trend of legislation on working hours, which has been influential worldwide. Few of these research results, however, involve China. In the academic field of labor law in China, such scholars as Wang Quanxing, Lin Jia, Guo Jie, Feng Yanjun, and Shen Tongxian conducted research on the law of working hours at earlier stage, and held in-depth discussion on the empirical issues of local legislation, and contributed greatly to the establishment of the legal system framework of working hours, rest and vacation in China. For the past few years, the study and discussion on the law of working hours in China has been more and more intense, of which the representative research literature and its main viewpoints are as follows: The empirical study of Yang Heqing and such shows the status quo of excessive labor in China. Qian Yefang, Hou Lingling, et al. explored the possible ways to solve the overtime problem from the perspective of the protection of the right to rest and the compensation of overtime wages. See Yang Heqing et al., “Research on Legal Regulation of Excessive Labor in China Under the New Normal”, Journal of Nanjing University (Philosophy and Social Sciences) 5 (2017); Qian Yefang and Xu Shuntie, “The ‘996’ Working System and Legislation on the Right to Rest”, Zhejiang Academic Journal 4 (2019); Hou Lingling, “Local Adjudication Rules for Calculating Base Number of Overtime Wages in China”, Legal Science 6 (2014); Wang Tianyu has made a relatively extensive international comparison of the legal concept of working hours, and proposed the construction method of the categorization of the concept of working hours. See Wang Tianyu, “Legal Rationale Restatement and Normative Construction of Working Hours”, Law Review 6 (2021); Wang Qian suggested introducing the system of flexible working hours in foreign countries and strengthening administrative supervision on labor to solve the problem of employers abusing special working hours system to avoid the obligation of paying overtime. See Wang Qian, “On the Reform of China’s Special System of Working Hours: Between Elasticity and Security”, Law Review 6 (2021); Zhao Hongmei reflected on the systematic defects of legal regulation of working hours in China, and put forward legislative suggestions on how to limit the working intensity and working hours of recruiting workers on platform. See Zhao Hongmei, “On the Defects, Value Functions and Improvement of China’s System of Working Hours”, Global Law Review 1 (2020), and “Regulations on Working Hours and Labor Intensity of Network Platform Workers”, Human Rights 3 (2022); Shen Jianfeng made a categorized study on the structure of the legal system of leave. See Shen Jianfeng, “Legal Structure and System of Leave in Labor Law”, Legal Science 10 (2021); Chen Jingyuan made a preliminary exploration on the institutional path of excluding independent workers from applying the standard working hours system in China. See Chen Jingyuan, “Exceptions and Restrictions to the Standard Working Hours for Autonomous Workers”, Legal Science 11 (2010). The above research is quite insightful, and has a positive effect on the development of the legal system on working hours in China. However, due to the decentralized topics, their system analysis of the international development trend of the legal regulation of working hours is insufficient, and its historical law and characteristic experience have not been fully explained. In this regard, this paper will make extensive use of and sort out the research literature of the ILO and other international organizations which are less concerned by domestic researches but have a great influence on the research of legal system on working hours in the world, briefly outline the documentary map of international studies on legal regulation in working hours, broaden the global vision of domestic research in this field and provide new literature resources, try to sum up the experience of reducing working hours in China, and further enrich the international study on the legal system of working hour.

 

5. Sangheon Lee, Deirdre McCann and Jon C. Messenger, “Working Time around the World-Trends in Working Hours, Laws and Policies in a Global Comparative Perspective”, ILO, 2007, page 24.

 

6. Moishe Postone, “Time, Labor, and Social Domination: A Reinterpretation of Marx’s Critical Theory”, translated by Kang Ling (Beijing: Peking University Press, 2019), 242-250.

 

7. Tetsuo Ohsuka and Fusao Shimoyama, Shortened Labor Time (Tokyo: Ochanomizushobo Co., Ltd., 1998), 3-4.

 

8. Philip Tucker and Simon Folkard, “Working Time, Health and Safety: A Research Synthesis Paper”, ILO, 2012, page 39; Leifur Magnusson, “Hours of Labor in Foreign Countries”, from “The Annals of the American Academy of Political and Social Science”, (May 1919), 83, International Economics (May 1999), page 228-229.

 

9. Satoshi Nisitani, Labor Law (Tokyo: Nippon Hyoron Sha Co., Ltd, 2013), 282.

 

10. Tetsuo Ohsuka and Fusao Shimoyama, Shortened Labor Time, 4

 

11. Lei fur Magnusson, “Hours of Labor in Foreign Countries”, from “The Annals of the American Academy of Political and Social Science”, (May 1919), 230 -231.

 

12. Tetsuo Ohsuka and Fusao Shimoyama, Shortened Labor Time, 4.

 

13. Satoshi Nisitani, Labor Law, 282-283.

 

14. “Decent Working Time in Industrialized Countries: Issues, Scopes and Paradox”, in Boulin Jean-Yves, Lallement Michel, Messenger Jon C. and Michon Fran?ois, Decent Working Time, New Trends, New Issues, International Labor Office, page 13-40, 2006, halshs-00311150, page 14.

 

15. R. Blanpain et al., “Legal and Contractual Limitations to Working Time in the European Community Member States”, in European Foundation for the Improvement of Living and Working Conditions, 1988, page 20.

 

16. Mitchell Hovey and Advised Kline edited, The Value of Time and Leisure in a World of Work (Chicago: Lexington Books, 2010), 1.

 

17. Gerhard Bosch, “Working Time: Tendencies and Emerging Issues”, 138 International Labor Review 2 (1999): 145.

 

18. Naj Ghosheh, “Remembering Rest Periods in Law: Another Tool to Limit Excessive Working Hours”, ILO, 2016, page 11-14.

 

19. Gerhard Bosch, “Working Time: Tendencies and Emerging Issues”, 138 International Labor Review 2 (1999): 146-147.

 

20. Jon Messenger, “Working Time and the Future of Work”, Geneva, ILO, 2018, page 5-12.

 

21. “Final Report: Tripartite Meeting of Experts on Working-time Arrangements”, Geneva, October 17-21, 2011/International Labor Office, Conditions of Work and Employment Branch. Geneva, ILO, 2012, page 4-5.

 

22. Jon Messenger, “Working Time and the Future of Work”, Geneva, ILO, 2018, page 15.

 

23. “Final Report: Tripartite Meeting of Experts on Working-time Arrangements”, Geneva, October 17-21, 2011/International Labor Office, Conditions of Work and Employment Branch. Geneva, ILO, 2012, page 14-15.

 

24. Elaine McCrate: “Unstable and On-call Work Schedules in the United States and Canada”, ILO, 2018, page 5.

 

25. “Decent Working Time in Industrialized Countries: Issues, Scopes and Paradox”, in Boulin Jean-Yves, Lallement Michel, Messenger Jon C. and Michon Fran?ois, Decent Working Time, New Trends, New Issues, International Labor Office, page 20-25, 2006.

 

26. “Working Conditions in a Global Perspective”, Publications Office of the European Union, Luxembourg, and International Labor Organization, Geneva, 2019, page 26-32.

 

27. Marta Glowacka, “A Little Less Autonomy? The Future of Working Time Flexibility and Its Limits”, 12 European Labor Law 2 (2021): 113-133.

 

28. Sangheon Lee and Deirdre McCann, “Working Time Capability: Towards Realizing Individual Choice”, in Boulin Jean-Yves, Lallement Michel, Messenger Jon C. and Michon Fran?ois, Decent Working Time, New Trends, New Issues, International Labor Office, page 65-92, 2006.

 

29. “Final Report: Tripartite Meeting of Experts on Working-time Arrangements”, Geneva, October 17-21, 2011/International Labor Office, Conditions of Work and Employment Branch. Geneva, ILO, 2012, page 3-13.

 

30. Gerhard Bosch, “Working Time: Tendencies and Emerging Issues”, 138 International Labor Review 2 (1999): 145.

 

31. Labor Law Society of Taiwan, Interpretation of the Labor Standard Law (Taipei: New Sharing Culture Enterprise Co., Ltd., 2005), 332.

 

32. Naj Ghosheh, “Remembering Rest Periods in Law: Another Tool to Limit Excessive Working Hours”, ILO, 2016, page 12.

 

33. Jon Messenger, “Working Time and the Future of Work”, Geneva, ILO, 2018, page 25-30.

 

34. Sangheon Lee and Deirdre McCann, “Working Time Capability: Towards Realizing Individual Choice”, in Boulin Jean-Yves, Lallement Michel, Messenger Jon C. and Michon Fran?ois, Decent Working Time, New Trends, New Issues, International Labor Office, page 78-82, 2006.

 

35. Ibid., 81.

 

36. Jon Messenger, “Working Time and the Future of Work”, Geneva, ILO, 2018, page 29.

 

37. R. Blanpain et al., “Legal and Contractual Limitations to Working Time in the European Community Member States”, in European Foundation for the Improvement of Living and Working Conditions, 1988, page 20.

 

38. The working hours legislation under the leadership of the CPC is essential for the legislation as a whole, reflecting the basic characteristics and general rules of the legislation led by the CPC. In line with the exposition of Peng Zhen and other leaders and the guiding principles of central documents, Professor Liu Songshan explained the nature and mode of the CPC-led legislation, and held that “the legislation led by the CPC relies on its foresight and insight in the cause of national legislation, and an accurate understanding of the law to regulate the development of social relations, especially the necessity, timeliness and appropriateness of legislation. This is the essence of the CPC-led legislation”. See Liu Songshan, “Several Key Issues to be Solved in the Legislative Work under the Leadership of the CPC”, Legal Science 5 (2017): 10.

 

39. Party History Research Center of the CPC Central Committee ed., History of the Communist Party of China (vol. 1) (1921-1949) (Beijing: CPC History Publishing House, First Edition, 2011), 80-87.

 

40. From the founding of the CPC to the Era of the Great Revolution, the course of the CPC’s labor legislation is generally as follows: In early May 1922, the first National Labor Conference was held in Guangzhou, deliberating and adopting 10 resolutions, including the Act of Eight-hour Working System. In July of this year, the Second National Congress of the CPC decided to launch a nationwide labor legislation campaign. China Labor Union Secretariat Department has formulated The Principles of Labor Legislation and The Outline of Labor Laws. The Third National Labor Conference held in May 1926 adopted the Resolution on the Outline of the Labor Law, which made key supplements and amendments to The Outline of Labor Laws and other programmatic documents in light of the practices of the Chinese labor movements. The legislation of working hours and leave, which focused on the eight-hour working system, was an important part of the early labor legislation of the CPC. Ibid., 87; Zhang Xipo, Labor Movement Program and Labor Legislation History in Revolutionary Base Areas (Beijing: China Labor Press, 1994), 33-54.

 

41. In June 1928, the Sixth National Congress of the CPC passed a resolution, taking the establishment of the Soviet regime as the central task of the Party, indicating that the central work of the Party was no longer to organize labor movements in big cities, but to launch mass work in the countryside with painstaking efforts to gather strength. Compared with the Era of the Great Revolution, the working hours legislation in the Soviet Area greatly improved the rest & vacation treatment of workers and peasants, and strictly implemented the policy of reducing working hours. Its main purpose was to continuously improve the lives of the people in the Soviet area, increase labor productivity, pool all economic forces to support the war, consolidate the economic union of workers and peasants, break the enemies’ economic blockade of the Soviet area, and ensure the political stability of the Soviet Area in the harsh environment of revolutionary struggle. See Party History Research Center of the CPC Central Committee ed., History of the Communist Party of China (vol. 1) (1921-1949), 260-263; Labor Law of the Soviet Republic of China (Promulgated on October 15, 1933), Chapter 3 Working Hours, Han Yanlong and Chang Zhaoru, Selected Legal Documents of Revolutionary Base Areas(Beijing: China Social Sciences Press, 2013), 1409-1411. Mao Zedong, “Our Economic Policies”, in Selected Works of Mao Zedong (vol. 1) (Beijing: People’s Publishing House, 1991), 130.

 

42. Party History Research Center of the CPC Central Committee ed., History of the Communist Party of China (vol. 1) (1921-1949), 553 -554, Zhang Xipo, The Program of Labor Movement and the History of Labor Legislation in Revolutionary Base Areas (Beijing: China Labor Press, 1994), 246-251 and 265-269.

 

43. Han Yanlong and Chang Zhaoru ed., Selected Legal Documents of Revolutionary Base Areas (Beijing: China Social Sciences Press), 1524-1530.

 

44. Party History Research Center of the CPC Central Committee, History of the Communist Party of China (vol. 2) (1949-1978), Second Edition (Part 1) (Beijing: CPC History Publishing House, 2011, First Edition, reprinted in 2021), 5-14.

 

45. Yuan Lunqu, Economic History of New China (Beijing: Labor and Personnel Publishing House, 1987), 7.

 

46. Ma Wenrui, “Ten Years of Struggle to Promote the Rapid Development of Productivity and Improve the life of Workers (Abstract)” and “Exert the Utmost Effort in Labor Protection and Promote the Continuous Leap in Production Construction”, in China Labor Personnel Yearbook (1949- 1987), Editorial Office of China Labor Personnel Yearbook ed., (Beijing: Labor and Personnel Press, 1989), 1339-1343 and 1343-1347.

 

47. Liu Shaoqi, “Congratulatory Speech at the Representative Meeting of National Advanced Producers (Abstract)” (April 30, 1956), Editorial Office of China Labor Personnel Yearbook. Ibid., 18.

 

48. Wang Fengjiang, Systems of Working Hours and Leave, Editorial Office of China Labor Personnel Yearbook. Ibid., 668.

 

49. Ibid., 669

 

50. Yuan Lunqu, Economic History of New China, 126 and 229.

 

51. Notice on the General Plan for the Reform of the Labor System in the Period of Establishing a Socialist Market Economic System (Ministry of Labor [1993] 411), Articles 2, 3, 12 and 13.

 

52. Law of the People’s Republic of China on Industrial Enterprises Owned by the Whole People (amended on April 13, 1988), Articles 2, 4, 9, 10, 11, I2 and 40. 

 

53. Labor Law of the People’s Republic of China (implemented on February 29, 2018), Article 36-45 and 62.

 

54. Party History Research Center of the CPC Central Committee ed., History of the Communist Party of China (vol. 1) (1921-1949), 27.

 

55. All-China Federation of Trade Unions Research Group, General Secretary Xi Jinping’s Important Statements on the Work of the Working Class and Trade Unions (Beijing: China Workers’ Press, 2021), 8. 

 

56. Peng Zhen, “Some Issues on the Guiding Ideology of Socialist Spiritual Civilization Construction” (October 28, 1986), in Selected Works of Peng Zhen (1941-1990) (Beijing: People’s Publishing House, 1991), 572.

 

57. General Secretary Xi Jinping, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era Delivered at the 19th National Congress of the Communist Party of China” (October 18, 2017), People’s Daily, October 28, 2017.

 

58. “Decision of the Central Committee of the Communist Party of China on Several Major Issues concerning Upholding and Improving the System of Socialism with Chinese Characteristics and Promoting the Modernization of National Governance Capacity” (adopted on October 31, 2019).

 

59. The CPC Central Committee and the State Council, Opinions on Building Harmonious Labor Relations([2015] No. 10, issued on March 21, 2015), Article 3 (5).

 

60. The Opinions of the State Council on Further Improving the Stable Employment ([2019] No. 28, issued on February 24, 2019), Article 11.

 

61. International Labor Organization, Recommendation for Shortening Working Hours 1962, Article 4.

 

62. Arbeitszeitgesetz (ArbZG) §5 (1).

 

63. Chen Jingyuan, “Exceptions and Restrictions on the Application of Standard Working Hours for Autonomous Workers”, Legal Science 11 (2021): 159.

 

64. Notice of the Ministry of Human Resources and Social Security and the Supreme People’s Court on Jointly Issuing the Second Batch of Typical Cases of Labor and Personnel Disputes, [2021] No. 90, issued on June 30, 2021.

 

65. Arbeitszeitgesetz (ArbZG) §7.

 

66. Wang Nengjun, “Research on Overtime Legal Norms and Problems in Labor Standards Act-Legal System and Practice of Overtime in Japan and Taiwan”, Taipei University Law Review 81 (2012): 17-20.

 

67. Wang Qian, “On the Reform of China’s Special Working Hours System: Between Elasticity and Security”, Law Review 6 (2021): 101.

 

68. Chen Jingyuan, “Exceptions and Restrictions on the Application of Standard Working Hours for Autonomous Workers”, Legal Science 11 (2021): 159.

 

69. Zhao Hongmei, “Legislative Regulations on Working Hours and Labor Intensity of Online Platform Workers”, Human Rights 3 (2022): 67-69.