Recently, the sudden death of an e-commerce platform employee overtime has aroused public attention. The "996" work model has once again been pushed to the forefront. Why the labor law cannot control "996" has become a doubt among many netizens.
Undoubtedly, the "996" working hours of more than 60 hours a week violated the principled provisions of the law on the working hour system.
Article 36 and Article 38 of the Labor Law stipulate that the state implements a working hour system in which employees work no more than eight hours a day and an average work week no more than 44 hours. At least one day off.
However, there are principles and exceptions. The legislature has also made flexible provisions in consideration of relevant actual conditions.
Article 39 of the Labor Law stipulates that if an enterprise cannot implement the provisions of Article 36 and Article 38 due to production characteristics, other work and rest measures may be implemented with the approval of the labor administrative department.
At the same time, Article 41 of the law stipulates that employers may extend their working hours after consultation with the labor union and workers due to production and business needs.
Therefore, based on the relevant laws and regulations, “996” is indeed a violation of the labor law under normal circumstances. However, if the maximum working time is not more than 11 hours per day under the special circumstances of “consultation with the labor union and workers” No more than 80 hours per month, which is hardly illegal.
Although the labor law stipulates a limit on working hours, it also stipulates that if the employer arranges for workers to extend their working hours, they shall pay no less than 150% to 300% of their wages.
In this way, the way of extending working hours and paying overtime wages has to some extent become a consensus reached by both the enterprise and the workers, forming a tacit understanding of "you love me."
Although there is a labor inspection system, labor disputes between workers and enterprises fall within the scope of the civil law. Civil disputes often follow the basic principles of "autonomy of will, no complaints", and no complaints or legal proceedings are filed by workers. Under the circumstances, it is often difficult for regulators to detect the occurrence of such irregular behaviors.
Workers are dissatisfied with the "996" work system. According to current laws and regulations, the ways that workers can take to protect their rights and their effects are often limited.
One of the ways for workers to protect their rights is to file an arbitration with the Labor and Personnel Dispute Arbitration Committee. However, the Labor and Personnel Dispute Arbitration Committee can only make a ruling on the case and does not have the power to interfere and punish the company’s employment system. Therefore, workers use this channel The appeals that can be supported are nothing more than the termination of the labor contract and the payment of overtime pay, which cannot involve the work system of the enterprise itself.
In addition, although workers can file complaints or reports to the labor and personnel administrative department for rights protection, the labor and personnel administrative department will deal with the situation according to the severity of the case within the framework of the current law, and warn the enterprise or impose a fine. However, the existing laws and regulations Or the policy system does not have unified norms and standards for how to handle such cases, and there are few precedents for implementation, and labor administrative departments are also quite difficult in handling related cases.
Legality is not necessarily reasonable. Just as the law is only the lowest moral bottom line, compliance with the law is only the bottom line of business compliance.
The healthy and sustainable development of a society is inseparable from the joint efforts of every member of the society.
As an important member of social economic organizations, enterprises should be responsible for creating a more suitable working style and environment for employees through a good corporate culture and employment system.
At the same time, labor administrative departments should strengthen supervision and inspection of employers’ compliance with labor laws and regulations in accordance with the law, and guide the sound development of labor-management relations.
(Author: Liu Wan, the Department of attorney)