Conflict between old and new labor laws: 40 or 44 hours per work week?

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Recently, the Chinese Academy of Labor and Social Security and Social Sciences Academic Press jointly released the \"Report on the Development of Labor and Social Security in China (2016)\」 (the Blue Book on Labor and Social Security in China), which outlines two laws, seven administrative regulations, 15 departmental rules, 139 replies and responses, as well as 48 opinions and notices in the field of labor relations in China. (EHS.CN) However, there are inconsistencies among certain provisions in the aforementioned labor relations legislation, and experts suggest that the authorities responsible for formulating these regulations need to address this issue promptly. The regulations and legal provisions regarding whether the working week should be 40 hours or 44 hours are not entirely consistent with each other. What is the standard working week length? When asked this question, many people might say 40 hours. According to the Regulations of the State Council on Working Hours for Employees, employees are required to work 8 hours per day and 40 hours per week. This regulation shall come into effect no later than May 1, 1997. But there must be other answers in practice. The reporter saw on a website of a technology-focused university that a recruitment announcement released recently by a large corporate group stated clearly: \"Employees on the regular shift work six days and have one day off (44 hours of work per week, with Sunday as the day off).\" ” In accordance with Article 36 of the Labor Law of the People’s Republic of China and the Ministry of Labor’s Explanations on Certain Provisions of the Labor Law of the People’s Republic of China, the maximum weekly working hours are 44 hours. Li Wenjing, an associate researcher at the Institute of Labor Science under the Ministry of Human Resources and Social Security, told a reporter from the Legal Daily that although in practice we have generally accepted the rule that the maximum weekly working hours are 40, in terms of hierarchical validity, according to the rules for applying laws stipulated by legislation, it is clearly the provisions of the Labor Law that should apply, meaning that the normal weekly working hours should not exceed 44 hours. Regarding the inconsistency between this new regulation with a lower rank and the old regulation with a higher rank, Li Wenjing’s suggestion is that, in order to avoid such conflicts on a formal level, Article 36 of the Labor Law should be amended to explicitly authorize the State Council to establish specific working hour regulations within the statutory framework. This modification not only avoids conflicts but also grants the State Council a certain degree of discretion, enabling it to determine working hour regulations in a timely and appropriate manner based on socio-economic conditions. Li Wenjing found that in the field of labor relations in China, there are inconsistencies among various provisions in the two current laws, 7 administrative regulations, 15 departmental rules, as well as numerous replies, responses, opinions, and notices. In response, Shen Jianfeng, deputy dean of the Law School at the China University of Labor Relations, told reporters: “Regulatory conflicts are a fairly common phenomenon in China’s labor law.” ” Shen Jianfeng believes that the reason lies first in the fact that labor laws carry a strong social policy character, and rules need to be adjusted continuously in line with the demands of socioeconomic development. Since the start of the reform and opening up, China’s socio-economy has undergone significant changes, and labor laws have also changed greatly. In recent years, the pace of labor legislation has been fast, but the repeal and revision of old laws have not kept up, making conflicts between old and new laws inevitable. “Secondly, there are many sector-specific labor laws, which can easily lead to conflicts between the regulatory provisions of different legislative bodies. Finally, deficiencies in legislative techniques can also lead to conflicts among labor law regulations. ”Shen Jianfeng said. When legal statutes, administrative regulations, and departmental rules are inconsistent with each other, it becomes difficult for judicial authorities and arbitration bodies to determine which laws should be applied. Li Wenjing also identified another case of inconsistency: new laws do not provide provisions on certain matters, leaving it unclear whether the existing relevant regulations should continue to be in effect. For example, the regulations regarding medical assistance funds. Regarding the situation in which an employment contract is terminated or ended due to an employee’s illness or injury not resulting from work-related causes, and the employer is required to pay medical assistance funds, Article 22 of the \"Notice of the Ministry of Labor on Several Issues Concerning the Implementation of the Employment Contract System\", Article 6 of the \"Measures for Economic Compensation in Case of Breach or Termination of Employment Contracts\", and Article 35 of the \"Opinions on Several Issues Concerning the Implementation of the Labor Law of the People’s Republic of China\" all stipulate that in addition to paying economic compensation, the employer must also provide medical assistance funds. However, the Labor Contract Law of the People’s Republic of China only stipulates that employers must pay economic compensation, but does not provide for medical assistance funds. In practice, workers have also filed lawsuits against their employers over this issue. On March 16, 2011, Sun signed a written labor contract with a certain company, the term of which was from March 16, 2011, to December 31, 2013. Thereafter, due to illness, Sun was hospitalized 9 times between February 27, 2012, and November 2, 2012. Furthermore, starting from August 27, 2012, Sun stopped going to work at that company due to illness. In June 2013, Sun requested to terminate the labor relationship between the two parties on the grounds that he was hospitalized due to illness and that the company deducted his salary during his medical leave. One of the issues in dispute between the two parties is whether the employer should provide medical assistance. The court of first instance held that in order to standardize the economic compensation standards for workers in cases of breach or termination of labor contracts, the former Ministry of Labor, in accordance with the provisions of the Labor Law, formulated departmental regulations requiring employers to pay medical assistance funds. After the implementation of the Labor Contract Law, the aforementioned regulations were not repealed by the competent authorities. The provision in Article 6 regarding medical subsidies does not conflict with higher-level laws and remains valid. Therefore, Sun requested that the company pay medical compensation, and the court granted this request. After the first-instance judgment, the company filed an appeal. After reviewing the case, the appellate court dismissed the appeal and upheld the judgment of the first instance. Li Wenjing believes that although the Labor Contract Law does not provide for medical compensation, its purpose is clearly different from that of economic compensation in the event of termination of a labor contract. As long as the relevant provisions have not been explicitly repealed, they should continue to be applied. In addition, Li Wenjing also found that there are inconsistencies among laws, administrative regulations, and departmental rules regarding the legal responsibilities of employers who deduct or delay paying workers’ wages without justification (failing to pay workers their earnings in full and on time as required by law). There are also inconsistencies among these same regulations regarding the issue of additional compensation and damages that should be paid to workers when employment contracts are terminated without proper compensation being provided in accordance with the law. In Shen Jianfeng’s view, conflicts between legal norms governing labor relations have a significant impact on the judiciary, law enforcement, as well as workers and employers. Shen Jianfeng believes that the greatest impact is that it increases the difficulty for judicial and arbitration bodies to apply the law, leading to situations where completely different rulings are issued for identical cases, which undermines the authority of the law. “It reduces the predictability of labor law rules for workers and employers. The rules governing behavior in the labor employment process are uncertain. For employers, this leads to increased costs associated with labor management. Moreover, the obligation rules typical of enterprises under a planned economy coexist with those applicable in a market economy, which often adds to the burden on these companies. For workers, the legal rules intended to protect their interests are unclear, resulting in higher costs for safeguarding their rights. ”Shen Jianfeng said. It is necessary to promptly resolve inconsistencies in regulatory provisions by referring to higher-level laws, and to use the Legislation Law to address conflicts between various legal norms. According to Li Wenjing’s analysis, there are significant discrepancies in the regulations regarding the duration of probation periods in China’s laws, departmental rules, and regulatory documents, and standardization is urgently required. According to the Labor Contract Law, if the term of a labor contract is more than three months but less than one year, the probation period shall not exceed one month; if the term is more than one year but less than three years, the probation period shall not exceed two months; for fixed-term labor contracts with a term of three years or more, as well as open-ended labor contracts, the probation period shall not exceed six months. The **Regulations on the Management of Labor Employment in the Railway Sector** and the **Ministry of Labor’s Notice on Several Issues Concerning the Implementation of the Labor Contract System** stipulate that for labor contracts with a duration of less than six months, between six months and one year, and between one year and two years, the trial period shall not exceed 15 days, 30 days, and 60 days respectively. Article 2 of the Reply from the Office of the Ministry of Labor regarding the start date of labor contracts and the probation period stipulates that the probation period for contract workers is three to six months. Li Wenjing believes that, in response to the aforementioned conflicts, and in accordance with the principle of legal precedence, the provisions of the Labor Contract Law should be applied. It is recommended that the relevant provisions in the regulatory documents of the relevant departments be explicitly declared as no longer applicable in an appropriate manner, and it is suggested that the railway authorities revise the relevant provisions in the **Regulations on the Management of Railway Labor Force**. Shen Jianfeng believes that in order to resolve the conflicts in labor law regulations, legislative policies should be unified during the law-making process; abolition, amendment, and establishment should take place simultaneously, and relevant legal regulations, especially those at lower levels, should be reviewed promptly after the legislation is completed. “Sorting out the regulations in the field of labor law is an urgent and arduous task. ”Shen Jianfeng told the reporters. Shen Jianfeng said that the techniques for applying the law should also be continuously improved. The Legislation Law establishes certain rules for resolving legal conflicts, and through these rules, conflicts between old and new laws, as well as between special laws and general laws, can be addressed to a certain extent. “From the perspective of improving mechanisms, it is necessary to enhance the system for reviewing legal norms in our country. Although the Legislation Law establishes certain rules for norm review, these rules are too difficult to activate and implement, and the legal conflicts that have already arisen cannot be resolved through this mechanism. ”Shen Jianfeng said.