Blind Spots related to the special working hour systems

There are 3 categories of working hour system, which are the standard working hours, the flexible working hours arrangement, and the comprehensive calculation regarding working hours, among which, the latter two could be implemented upon the approval of the labor administrative department, and they are generally referred to as the special working hour systems. The “Notice on Issuing the Measures for the Examination and Approval of Flexible Working Hours Arrangement and Comprehensive Working Hours Scheme Adopted by Enterprises” has stipulated the objects of the two special working hour systems. However, there are some blind spots.

Q: Whether an employer shall go through democratic negotiation procedures to apply for such special working hour systems?

A: The special working hour systems would directly involve the vital interests of workers, such as working hours, rest periods and off days, OT wages, etc. Therefore, in practice, many local labor administrative departments require written opinions from labor unions or employee representatives’ congresses on the implementation of such systems. Some local labor administrative departments even set more detailed requirements, such as in Zhejiang, in addition to the aforementioned written opinions, the labor contract with employee representatives and employee representative election resolutions are also required; and in Beijing and Ningxia, if an employer has established a labor union, a written opinion is required, otherwise a joint opinion from employees in relevant positions if there is no labor union.

In view of this, it is recommended that enterprises shall check the specific requirements of the local labor administrative department before applying for such systems, and go through the democratic negotiation procedures accordingly.

Q: Whether the special working hour systems could be implemented for dispatched personnel?

A: The special working hour systems is implemented to specific positions, regardless of different employment relations. Therefore, the special working hour system can be implemented for dispatched personnel. In addition, the employer shall apply for such systems instead of the labor dispatch service provider. According to Article 7 of the “Interim Provisions on Labor Dispatch”, a labor dispatch agreement shall specify working hours, which means the employer has the obligation to inform the dispatched personnel in advance.

It should be noted that some provinces and cities have special regulations for the application of such systems. For example, the “Notice on Further Strengthening the Approval and Management of Employers’ Implementation of the Flexible Working Hours Arrangement and Comprehensive Working Hours Scheme in Henan Province” stipulates that employers should also obtain the joint signature and consent of the dispatched personnel.

Q: Whether the branch could directly apply such systems when its headquarters has obtained such approval?

A: According to Article 7 of the ” Notice on Issuing the Measures for the Examination and Approval of Flexible Working Hours Arrangement and Comprehensive Working Hours Scheme Adopted by Enterprises” (Laobufa (1994) No. 503), the local labor administrative departments could formulate the measures for examination and approval of such systems. Therefore, there are significant differences regarding this blind spot. After searched the current local regulations, we found there are 3 main pieces of opinions.

（1）The branch could directly apply such systems, such as Sichuan, Tianjin, Ningxia, and Inner Mongolia.

（2）The branch should apply for such approval in its location separately, such as Shanghai, Beijing, and Jiangsu.

（3）If the headquarter has obtained the approval and mentioned its branch in the approval, then the branch could directly apply such systems, such as Guangdong.

（4）The head office’s application for a special working hour system in has been approved and does not apply to branch offices. Branch offices should resubmit their application in the registered area, such as Province.