Answer: At present, employment law and relevant regulations do not provide for paid work breaks, although work-breaks are statutory rights of employees. The judicial practices around the country generally treat work breaks as unpaid.
The explanatory definition of article 3 of the Labor, as indicated in the ¡°Interpretation of the Labor Law of the People¡¯s Republic of China¡± that is compiled and published by the Legislative Affairs Commission of the Standing Committee of the National People’s Congress in China, is as follows: The rest time stipulated in the Labor Law includes work breaks, rest time between two work days, weekend days, public holidays and annual leave, family visit leave, marriage and bereavement leave, personal leave, maternity leave, Sick leave, etc.
The book’s interpretation of Article 38 of the Labor Law reads: ¡°the current type and content of rest times in our country are as follows: first, the rest time within a workday. It is referred to the time of work-break and meal-break during work hours in each work day, which is also called break-time. Work-break and meal-break vary depending on workers¡¯ job and work nature, typically taking 1 to 2 hours but no less than half an hour. Break time normally starts after 4 hours of consecutive work and is not considered paid work time. For those jobs that cannot apply fixed break time due to an unbroken production process, employees involved should still be arranged for a meal break¡ In other words, the definition does not consider work-break as work time and therefore not as paid break.¡±
This problem is obscure in the judicial practice. Limited decisions shows that Chinese courts have held that work breaks do not qualify as work hours. An interesting case is the 2016 Dou Hongbo case before the Suzhou Intermediate People’s Court in Jiangsu Province, in which the judge implied the nature of work-break in his judgment that the time for employees to meet their physiological needs (going to the toilet) should be a paid interval or break.[Dou Hongbo and Sanyo Electronic Parts (Suzhou) Co., Ltd., Labor Dispute Appeal, Civil Judgment of Intermediate People’s Court of Suzhou City, Jiangsu Province (2016) Su 05 Min Zhong No.9724. ¡°Therefore, the Court holds that Sanyo Company has given employees the necessary time to solve their physiological needs and recover their physical strength outside the break time. Employees are free to use there rest time, engaging in activities unrelated to work and production, which should not be regarded as work hours. ¡±Wang Yanping and Shenzhen Shangpinxuan Culture Communication Co., Ltd. Labor Dispute Appeal Case Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2014) Shenzhong Falao Zhong Zi No.2432. ¡°In addition, the attendance time on the attendance sheet is only recorded two items of sign-in and sign-out. Real work hours therefore are not reflected as the break time is not deducted.¡± The Civil Ruling of Jiangsu High Court (2011) S.S.E.M.S.Z. No.436 on the labor dispute case between Weng Yunzhong and Company A. ¡°The applicant for retrial, Weng Yunzhong, claimed that the break time was overtime, which had no legal basis, and his application for retrial is not established.¡±]
For the right of female employees to take breaks under special protection, please see What are the special protections for female employees under employment law?
This article is a part of our new book“Employment Law in China: A Practical Guide. A book about “What should I do” with case laws.”Stay tuned, and the book will soon be published as an electronic books!
Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
Email: wangdong@royalaw.com