8.Is my employment contract on general work hours(or irregular work hours) considered valid?

Answer: Irregular and general work hours under employment law are set due to the characteristics of roles or industries, including nature of work, natural conditions, or seasonal conditions, where standard hours cannot be applied. Comparing with the standard work hours, they can only balance staff¡¯s work and rest by means of intensive work, concentrated or rotational rest, and flexible work hours, but the overall average work hours in the two systems should be consistent with the standard work hours.¹

Judging from the judicial decisions of courts around the country, the validity of the employment contract signed by an employer and their workers under the system of general work hours or irregular work hours mainly depends on the following factors: the characteristics of the job or industry, whether it has been examined and approved by the labor administrative department, and the agreement or cognition of both parties on the workhour system.

Job or industry characteristics are the fundamental reasons why employers can not implement the standard work hours but can only implement general work hours or irregular work hours. In practice, the most common positions that may involve include senior managers, field workers, salesmen, loading and unloading personnel, firefighters, remote well station personnel, some transportation and on-duty personnel,²airport staff,³security guards, monitors, toll collectors, elevator workers, etc. Cleaners may also be deemed as special positions.⁴

Whether the two parties have clearly agreed on the general work hours or irregular work hours or whether they have knowledge of it is also an important factor. If the employer advocates one of these two special workhour systems and the employee agrees, or if the employment contract between the two parties clearly stipulates one special workhour system, the court will be more inclined to recognize the same. For example, in the case of Zhang Qiang before the Intermediate People’s Court of Panjin City, Liaoning Province in 2022, the court held that Mr. Zhang Qiang had no objection to the signature of the document containing the irregular workhour system, so his objection in the lawsuit to the irregular workhour system was not established.⁵

In practice, it is controversial whether the general work hours and irregular work hours must be examined and approved by the labor administrative department. At present, courts in different places have different practices on this issue. Some cases in courts, including those in Guangdong, Shandong and Jiangsu Provincial High Courts, hold that these two workhour systems must be examined and approved by the labor administrative department, and that the workhour system without examination and approval is not established⁶. In 2020, the Ministry of Human Resources and Social Security and the Supreme People’s Court jointly issued a typical case number 13, which also approved this practice.⁷ 62). Case 13 of the typical case- Whether it is valid for the employer and the worker to agree on the implementation of the irregular workhour system. The court ruled that the irregular workhour system without administrative approval is invalid, and the employer should pay overtime wages for all non-normal work hours.[/notes]However, some courts, including the High Court of Beijing, Shanxi Province, Xinjiang Autonomous Region, the First Intermediate Court of Shanghai and the First Intermediate Court of Tianjin, believe that the two parties can effectively agree on this workhour system without administrative approval.⁸

Special attention should be paid to the fact that if the general work hours or irregular work hours can not be effectively established, the relationship between employers and workers shall be deemed as the standard work hour, and employers will bear the risk of high overtime wages; Because under the standard work hours, the worker¡¯s work hours outside the normal work hours (such as 9 to 5 from Monday to Friday) during the periods of concentrated work will be regarded as overtime. This is the major risk of the employer when the general work hours or irregular work hours cannot be established.

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Mr. Wangdong

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

1
Article 5 of the Ministry of Labor¡¯s Regulations on approval of enterprises¡¯ implementation of irregular work hours and general work hours, ¡°irregular workhour system and general hours system apply week, month, season, and year as computation period of number of work hours, but its average daily or weekly number of work hours are basically the same as the standard work hours.¡±
2
Article 2 of the Supplementary Official Reply of the Ministry of Labor on the Implementation of Irregular workhour system and General workhour system for Some Petroleum Workers in 1996.
3
Employment Dispute Application between Cheng Zheng and Nanjing Lukou International Airport Co., Ltd. Civil Ruling of Jiangsu Provincial People’s High Court (2014) S.S.M.S.Z. No.192.
4
Civil Judgment of Second Instance of Employment contract Dispute between Zhu Yonggang and Shanghai Zhiyou Security Service Co., Ltd. Civil Judgment of Shanghai No.2 Intermediate People’s Court (2020) Hu 02 Min Zhong No.3311. ¡°As approved by the Human Resources and Social Security Bureau of Yangpu District, Shanghai, during the period from June 1, 2017 to May 31, 2019, the irregular workhour system will be implemented for the senior management and marketing personnel of Zhiyou Security Company; and the general workhour system based on quarterly cycle will be implemented for the security, monitoring, charging, elevator workers and cleaners.¡±
5
Judgment of Second Instance of Employment Dispute between Zhang Qiang and Kunlun Energy (Panjin) Co., Ltd. Civil Judgment of Intermediate People’s Court of Panjin City, Liaoning Province (2022) Liao 11 Min Zhong No.1135. ¡°According to the signatures of the employees involved in the feedback form of the implementation plan of the wage assessment method, Mr. Zhang Qiang recognized the nature of his work and the wage system, so Zhang Qiang’s claim that Kunlun Energy had never informed Zhang Qiang to implement the irregular workhour system could not be established.¡±
6
Dai Li, Jidian Art Training (Shenzhen) Co., Ltd. Employment Dispute Civil Application for Retrial Review Civil Ruling Guangdong Provincial People¡¯s High Court (2021) Yue Min Shen No.5132. ¡°In this case, Dai Li and Jidian Company did not agree on the irregular workhour system in the full-time employment relationship between the two parties, nor was it approved by the labor administrative department, nor did it conform to the industry characteristics of the irregular workhour system in the above provisions, so Dai Li’s claim could not be established.¡±Shandong Baixin Medical Products Co., Ltd., Lu Xiaoyi Employment Dispute Civil Application for Retrial Review Civil Ruling Shandong High Court Civil Ruling (2021) Lu Min Shen No.7271. Civil Ruling on Employment Dispute Appeal and Application between Zhu Hualin and Changzhou Zhongheng New Materials Co., Ltd. Civil Ruling of Jiangsu High Court (2019) Sumin Shen No.3698.
7
Notice of the Ministry of Human Resources and Social Security and the Supreme People’s Court on Jointly Issuing the First Batch of Typical Cases of Labor and Civil Servant Disputes (Ministry of Human Resources and Social Security Letter ⁷2020
8
Liu Xiaojin, Xinjiang Bohai Cement Co., Ltd. Civil Ruling of Employment Dispute Civil Second Instance Civil Ruling of the High Court of Xinjiang Uygur Autonomous Region (2023) Xin Min Shen No.114. Employment Dispute retrial between Li Jin and Taiyuan Branch of Beijing Dawang Food Co., Ltd. Civil Ruling of Shanxi Provincial People¡¯s High Court (2022) Jin Min Shen No.328 (non-approval of irregular workhour system does not affect the validity). Civil Ruling on Employment Dispute Retrial Review and Trial Supervision between Cui Jiaping and Beijing Jingcheng Jiufang Hotel Management Co., Ltd. Civil Ruling of Beijing High Court (2019) Jing Min Shen No.4495. Appeal Case of Labor Remuneration Dispute between ZGP and HM Company Civil Judgment of Shanghai No.1 Intermediate People’s Court (2011) Hu Yi Zhong Min San (Min) Zhong Zi No.1242. Rongbao (Tianjin) Security Service Co., Ltd., Wu Zhiqiang Employment Dispute Second Instance Civil Judgment Tianjin First Intermediate People’s Court Civil Judgment (2021) Jin 01 Min Zhong No.1039.

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8.Is my employment contract on general work hours(or irregular work hours) considered valid?

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