Historical legal commentary: The original views and byline concerning the 2019 “996” debate are preserved below. The original publication date remains unverified, and the author’s identity and affiliation are retained as introduced in the manuscript. This is not legal advice for a current individual case.
Recently, the three digits “996” have flooded online platforms. If you are an office worker, you have probably heard about them. The so-called “996 working-hours system” means starting work at 9 a.m., working until 9 p.m., and doing so six days a week. That schedule spans 72 hours on site each week; whether breaks are excluded from legally counted working time depends on whether employees remain at their employer’s disposal during those breaks.
Do you think this working-hours system is reasonable?
China’s two types of working-hours system
Working-hours systems in mainland China can broadly be divided into two categories: the standard working-hours system and special working-hours systems.
The standard working-hours system is principally set out in the 1994 Labour Law of the People’s Republic of China (hereafter, the Labour Law) and the State Council Regulations on Working Hours of Employees, promulgated in 1994 and amended in 1995 (hereafter, the State Council Working-Hours Regulations). Article 36 of the Labour Law provides that the state shall implement a working-hours system under which employees work no more than eight hours a day and an average of no more than 44 hours a week. Article 3 of the State Council Working-Hours Regulations provides for eight hours a day and 40 hours a week. The Labour Law’s 44-hour ceiling should be distinguished from the 40-hour standard in the amended State Council regulations; standard working-hours practice follows eight hours a day and 40 hours a week.
Special working-hours systems are principally set out in the Labour Law and the Measures for the Approval of Flexible Working Hours and Comprehensive Calculation of Working Hours in Enterprises, issued by the former Ministry of Labour in 1994 (hereafter, Document No. 503). Article 39 of the Labour Law provides that enterprises that cannot implement standard working hours or guarantee employees at least one day off each week because of the nature of production may adopt other work and rest arrangements with the approval of the labour administration. These “other work and rest arrangements” are special working-hours systems, principally governed by Document No. 503. That document divides them into flexible working hours and comprehensive calculation of working hours. Flexible working hours apply to employees whose work cannot be measured by standard working hours, or who need flexible arrangements, because of the nature of production, particular work requirements, or their duties. Comprehensive calculation of working hours calculates working time over a week, month, quarter, year, or other period; however, average daily and weekly working hours should be essentially the same as standard working hours.
Can “996” be made lawful?
An enterprise cannot make “996” lawful simply by adopting it or labeling it a special working-hours system. Under the standard system, normal working hours must not exceed eight hours a day and 40 hours a week; a routine schedule of 9 a.m. to 9 p.m., six days a week, clearly exceeds that standard. Whether a job falls under a special working-hours system, however, cannot be determined merely by whether its starting and finishing times are fixed. The nature of the job, the eligibility conditions, and approval by the labour administration also matter. A special working-hours system requires approval, and implementing one without approval is unlawful.
For another thing, could “996” become lawful if the hours beyond the statutory limit were designated as overtime? The answer remains no. Article 41 of the Labour Law provides that employers may extend working hours to meet production and business needs after consulting the trade union and employees, generally by no more than one hour a day. Where special circumstances require an extension, working hours may be extended by no more than three hours a day, provided employees’ health is protected, and by no more than 36 hours in a month. Under Article 44, employers must pay for extended working hours as follows: at least 150 percent of wages for overtime; at least 200 percent for work on rest days when compensatory time off cannot be arranged; and at least 300 percent for work on statutory holidays. Under these general rules, routine “996” overtime clearly exceeds statutory limits. It becomes the “double violation” discussed here if statutory overtime pay is also withheld. Whether overtime has been paid depends on the facts and cannot be inferred from the schedule alone. Article 42 separately provides for emergencies and other specified circumstances; these exceptions must not be treated as a basis for routine “996.”
“996” also conflicts with the protections for working time and rest embodied in a series of international labour conventions, including the Hours of Work (Industry) Convention, 1919 (No. 1); the Weekly Rest (Industry) Convention, 1921 (No. 14); the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30); the Forty-Hour Week Convention, 1935 (No. 47); and the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106). Convention No. 30 defines working hours as the time during which employees are at their employer’s disposal, excluding rest periods during which they are not. Conventions No. 1 and No. 30 specify conditions for redistributing normal working hours and permitting exceptional overtime; the nine- or ten-hour daily limits under particular arrangements cannot be generalized into a universal limit of only one or two hours of overtime a day. Both conventions require pay of at least 125 percent of the regular rate for relevant exceptional overtime specified in them. China ratified Convention No. 14 on 17 May 1934, so it is incorrect to say that China has ratified none of these conventions. The treaty obligations arising from the others must be assessed individually according to ratification status. As China is a founding member of the International Labour Organization, the author advocates actively ratifying and following relevant international labour conventions to advance social justice and decent work. This advocacy does not mean that members are obliged to ratify every convention.
How have we been conditioned to accept “996”?
If “996” violates Chinese labour laws and regulations and conflicts with international labour conventions, why does it remain widespread in real life?
First, we can examine the two principal stakeholders in “996”: enterprises and employees. Enterprises are its main beneficiaries, at least in the short term. By adopting “996,” an enterprise can get two people’s work done while paying only one person’s wages—or somewhat more than the normal wage—and the associated five social-insurance contributions and housing provident fund contribution. This reduces labour costs and increases profits. Employees are the main losers. Their weaker position in labour relations, and their inability to balance bargaining power through trade unions, leave them with little ability to negotiate with enterprises. They are consequently forced into accepting “996.”
Second, this issue needs to be discussed within the particular social and cultural context of mainland China. When business figures such as Mr. Ma and Mr. Liu normalize and glorify “996,” they demonstrate a lack of corporate social responsibility, at least in this episode. Mr. Ma spoke about “996” three times. First, he said, “Being able to work 996 is an enormous blessing … If you do not put in more effort and time than other people, how can you achieve the success you want?” Second, he said, “No company should, or can, force employees to work 996 … But young people must understand that happiness comes from hard work! I am not defending 996, but I salute those who strive!” Third, he said, “What we lack is frank talk, honest talk, and talk that makes people think … Those who work 996 for overtime pay will find it hard to sustain.” Mr. Liu said, “Company X will never force employees to work 995 or 996, but everyone at Company X must have a fighting spirit!” He described his own schedule as “8116+8”: working from 8 a.m. to 11 p.m. Monday through Saturday, plus eight hours on Sunday, with two days off each month and one extended holiday each year. He enjoys the thrill of work and wants to find brothers willing to strive alongside him for their ideals. With a beguiling confidence, candour, and lofty perspective, Mr. Ma voiced the “true cry” in entrepreneurs’ hearts. Mr. Liu, posing as a moral exemplar, sounded a call to strive—and even sacrifice oneself—for one’s ideals under “996.” Leaving aside the fact that “996” and hard work have no necessary connection and follow two different kinds of logic, even if they were connected, could the hard work represented by “996” really give all workers the happiness promoted by Mr. Ma and Mr. Liu?
The hard work represented by “996” centres on excessively long working hours. Prolonged overwork can cause serious physical and psychological problems. Psychologically, excessive hours may increase negative emotions and mental burdens, leading to problems such as panic, anxiety, and neurasthenia. Physically, they may damage workers’ health, contribute to various illnesses, and even lead to suicide associated with overwork or death from overwork. Excessive working hours can also upset the balance between work and life and give rise to family and social conflicts. In short, hard work must not be held hostage by “996.” The “996 working-hours system” represents an unhealthy social culture.
Finally, solutions need to return to the domains of law and economics. From a legal perspective, labour and social-security laws and regulations must first be continually improved and effectively enforced. Second, working hours and wage standards need to be considered together. In many enterprises, working hours and pay are far from equivalent. Finally, trade unions’ bargaining capacity and corporate social responsibility need strengthening, along with the practical reach of collective agreements.
From an economic perspective, it is undeniable that, to some extent, excessive labour has contributed to economic development and improved living standards. But overwork should not become normal, much less be promoted. Second, the social dimension of economic development must be recognized: sustainable economic development requires decent work. Finally, industrial structures should be continually adjusted and the quality of employment improved as the economy develops.
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About the author
Zhang Weidong
Hi, everyone! I am Zhang Weidong:
Affiliation: PhD candidate in labour law at Leiden University’s Faculty of Law, the Netherlands;
Research interests: Primarily international labour law, social security, and global governance. I have an interdisciplinary educational and research background and previously received a bachelor’s degree in law (political science) and a master’s degree in public administration from Southeast University in Nanjing.
References
[1] “996.ICU” https://996.icu/#/zh_CN
[2] Labour Law of the People’s Republic of China
http://www.gov.cn/banshi/2005-05/25/content_905.htm
[3] State Council Regulations on Working Hours of Employees
http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/xzfg/201604/t20160412_237909.html
[4] Measures for the Approval of Flexible Working Hours and Comprehensive Calculation of Working Hours in Enterprises
http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/gz/201705/t20170522_271153.html
[5] Hours of Work (Industry) Convention, 1919 (No. 1)
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312146:NO
[6] Weekly Rest (Industry) Convention, 1921 (No. 14)
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312159:NO
[7] Hours of Work (Commerce and Offices) Convention, 1930 (No. 30)
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312175:NO
[8] Forty-Hour Week Convention, 1935 (No. 47)
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312192:NO
[9] Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106)
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312251:NO
[10] People’s Daily Online
http://capital.people.com.cn/n1/2019/0415/c405954-31029884.html;
http://m.people.cn/n4/2019/0414/c203-12578693.html
[11] China Economic Net
https://baijiahao.baidu.com/s?id=1630862907404808325&wfr=spider&for=pc
Editorial note
During migration, minimum corrections were made to working-time calculations, special-system classification, the factual conditions for overtime-payment violations, and the international-convention discussion, using the original Labour Law, the State Council regulations amended in 1995, and ILO convention texts. The author’s personal views on the 2019 debate and all original references are preserved. The historical biography does not establish the author’s present position.
Supporting references
Labour Law of the People’s Republic of China (original text)
State Council working-hours regulations and 1995 amendment
ILO: Conventions ratified by China (No. 14 ratified in 1934)
Sources and editorial history
Restored from a complete historical article exported from the PhDSciNet Official Account.
Editorial revision: During migration, minimum corrections were made to working-time calculations, special-system classification, the factual conditions for overtime-payment violations, and the international-convention discussion, using the original Labour Law, the State Council regulations amended in 1995, and ILO convention texts. The author’s personal views on the 2019 debate and all original references are preserved. The historical biography does not establish the author’s present position.
