Since the ruling of the European Court of Justice in mid-May on the recording of working time, there has been a great deal of discussion in the media: the recording of working times has become compulsory in Europe. Setback or progress – that is the question?  Homework and field work must be systematically recorded in addition to regular working hours. Whether via apps or electronic recording on a laptop, employers will now be obliged to implement systems for recording working hours. Each employer can decide on the details of the implementation for himself. However, the question arises as to whether service calls and e-mails answered on mobile phones also fall into the overtime category and how these should be recorded.

Background: The Spanish trade union Federación de Servicios de Comisiones Obreras (CCOO) brought an action before the Spanish National Court of Justice to determine whether Deutsche Bank SAE’s Spanish subsidiary, Deutsche Bank SAE, was obliged to set up a system to record the daily working hours of its employees. As a result, the European Court of Justice (ECJ) ruled that employers in all EU countries will be obliged to provide a time recording system in the future. The European Court of Justice justified the ruling with the “right to weekly rest” and other regulations that determine maximum weekly working hours or rest periods. 1 Only the systematic recording of working hours would make it possible to enforce the employee rights guaranteed under EU law.

Praise and criticism in Germany

In Germany, Europe’s largest economy, the ECJ decision is viewed both positively and negatively. The German Federation of Trade Unions (DGB) said in a statement that the ECJ’s decision had finally put an end to “flat rate work” and fully supports the decision. According to Annelie Buntenbach, member of the DGB Federal Executive Committee, the number of unpaid overtime hours in Germany has long been an unacceptable problem. 2 The Federal Association of German Employers’ Associations (BDA) sees things quite differently. “The decision of the European Court of Justice on the recording of work seems to have fallen out of time,” is the title of the declaration on the new legal situation. The BDA is of the opinion that in times of digitalisation and development of industry 4.0 the reintroduction of a time clock is not up-to-date. In particular, flexible workers should be able to decide for themselves whether they want to record their working time, says the BDA.

A different mind set: Asia

While time recording was discussed in Germany and Europe, the public discussion in China is dominated by a completely different view of working time. It is about the variant of the working week known in China as “996”.  In this context, the three digits stand for a tight working day from 9 a.m. to 9 p.m., 6 days a week.

Jack Ma, founder of the e-commerce giant Alibaba Group, which is legendary in China, defends and even praises this working time concept. He is of the opinion that “great success is only possible through great sacrifices”. A 996 week is not a challenge for him, but a minimum requirement, as he emphasized in a social media post on the Weibo platform in mid-April.

The working culture in China or Japan is strongly hierarchical, a demanding system that motivates people to work with pressure instead of freedom. Although employers do not explicitly demand that employees stay in the office until 9 p.m., they tacitly expect good employees to work longer hours in order to find their position. Richard Liu, managing director of JD.com Inc, agrees with his rival from Alibaba on this point. He doesn’t want to impose a “996” schedule on any of his employees, but considers anyone who gives in as not fraternal.

Many young workers in China are under intense competitive pressure and are struggling to get their superiors recognised for overtime. It is doubtful whether the efficiency of companies will increase in proportion to the number of hours worked. Nevertheless, many Chinese are convinced that there will soon be ‘997’ – 7 days a week – for some industries.

At the same time, there were many voices in China criticising Ma for his statements. On Weibo, the Chinese counterpart to Twitter, some users criticised Ma’s position. A harmonious family life is very important to many Chinese. Users commented that it is impossible to start a family while having a “996” working week. In addition, day care for children is very expensive and the state does not offer support in this area. However, not all Chinese companies take part in the overtime marathon. State companies such as the China Daily publishing house or the airline Air China believe that hard work and commitment need not mean forcing people to work overtime. These extreme overtime hours are regarded above all as a phenomenon of the tech industry in China. 3

Although Chinese tech companies may demand a “996” working culture, employment contracts in China are similar to those in Germany. In general, it can be said that Chinese labor law is considered to be employee-friendly. A normal working week has 5 days and the maximum regular working week is 44 hours. In theory, overtime must be paid at up to 300% of the regular wage. Maternity protection and social security systems have now also been implemented in Chinese labour law. In addition, as in Germany, there are regulations that protect employees from exploitation and dismissal. Thus “996” also stands in contrast to the labour law situation in China. Only in exceptional cases, such as taxi drivers or senior managers, is a higher number of working hours actually legal.

One focus of Ecovis Beijing’s consulting activities is Chinese labour law. From employment contracts to the employee handbook, which is essential in China, to payroll accounting or dismissals – we are a competent partner for international companies in China. Please contact us for further information and individual advice.

Ashley Tian is certified Chinese lawyer with a double bachelor degree in law and psychology (HR focus) and a master degree in Constitution and Administrative Law. She gained internat. experience during a work related stay in the US and worked in a law firm and foreign-invested enterprise prior to joining ECOVIS Beijing. She focuses her practice on company law, contract law, labor law, cyber security law, foreign exchange control, international trade as well as foreign direct investment. She is fluent in English and Mandarin.

Kontakt: ashley.tian@ecovis-beijing.com

Ecovis Beijing

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