Referee summary: The employer's regulations on the performance wages of workers who implement piece-based wages include overtime pay are not illegal.
Case summary:
Qiu and Tianjin Development Zone Human Resources Service Co., Ltd. (hereinafter referred to as "Human Resources Company") established a labor relationship from August 7, 2008 and signed an labor contract . The term of the last labor contract signed by both parties is from October 1, 2019 to September 30, 2021.
During the period when Qiu established a labor relationship with the human resources company, Qiu was sent to a wind power blade engineering Co., Ltd. in Tianjin (hereinafter referred to as the "engineering company") to engage in operation.
Qiu's salary is composed of a standard basic salary of 1,060 yuan + a standard skill salary of 700 yuan. In addition, based on Qiu's work situation, the human resources company pays him an irregular piece-based salary or performance salary.
On July 27, 2021, Qiu applied to the Tianjin Economic and Technological Development Zone Labor Dispute Arbitration Committee with the human resources company and the engineering company as the respondents, and requires the human resources company and the engineering company to jointly pay their overtime salary of 10,966 yuan on the day off from March 1 to December 31, 2020.
On September 14, 2021, the committee made a decision, but it decided to terminate it because there was no ruling for more than 45 days.
Qiu was dissatisfied and sued the People's Court of Tianjin Pilot Free Trade Zone (hereinafter referred to as the "first instance court"). The two parties later filed a lawsuit at the Tianjin Third Intermediate People's Court (hereinafter referred to as the "Second Instance Court").
During the trial, the human resources company recognized the fact of overtime work, but claimed that the piece-based salary has already stipulated that overtime pay includes overtime pay, so there is no need to pay additional overtime pay. The human resources company submitted the "Labor dispatched employee management system" after discussion and formulation of various "Labor dispatched employee management systems" including the "Regulations on Overtime and Overtime Wage Management of Labor Sent Workers". "Regulations on Overtime and Overtime Wage Management of Labor Sent employees" stipulates that the overtime pay calculation base shall be implemented in Tianjin's minimum wage standard; 4.1 stipulates that labor dispatch employees adopts different salary payment forms. For labor dispatch employees who implement piece-based wages, the performance (piece-based) salary including overtime pay will no longer be calculated separately. Qiu signed the induction form on the induction training on October 24, 2017, confirming that he had undergone induction training and was familiar with and committed to complying with the "Labor Dispatch Employee Management System".
Qiu objected to the formulation of the "Regulations on Overtime and Overtime Wage Management of Labor Sent Employees", but failed to provide evidence and said that the performance piece-based wage includes overtime pay and that the provision that overtime wages will not be calculated separately is a violation of the Labor Law and should be invalid.
Human Resources Company also submitted attendance records and day counts, and Qiu had no objection to his authenticity.
Judgment result:
The first instance court held that the employer can independently determine the salary distribution method and salary level of the unit in accordance with the law based on the production and operation characteristics and economic benefits of the unit. Regarding whether the human resources company and engineering company should pay Qiu's overtime salary of 10,966 yuan on the rest days from March 1 to December 31, 2020, the provisions of the "Regulations on Overtime and Overtime Wage Management of Labor Sent Employees" on the overtime salary base and performance (pieces) wage composition are the acts of the employer to independently determine the wage distribution method. This wage distribution method does not violate the mandatory provisions of the law and the labor contract. Although Qiu had objections to the formulation procedures of the Human Resources Company's "Labor Dispatch Employee Management System", he failed to provide legal and effective evidence to support his claim. The procedures for formulating relevant rules and regulations of the Human Resources Company should be determined to be legal and valid. Qiu had no objection to the authenticity of the attendance records and days statistics submitted by the human resources company. The amount of performance (pieces) paid by the human resources company to Qiu has exceeded the overtime wages payable by the overtime wages paid by the human resources company. Therefore, the lawsuit for Qiu's overtime salary on his rest day is not supported.
The second instance court held that, as an employer, the human resources company signed a labor contract with Qiu and trained Qiu in the employment rules and regulations. The evidence in the case shows that Qiu signed and confirmed the sign-in form for the induction training.The confirmation check-in form clearly states that Qiu is familiar with and promises to strictly abide by the "Management Regulations and Regulations of Labor Dispatch Employees". The rules and regulations stipulate that the overtime pay calculation base shall be implemented in Tianjin’s minimum wage standards; it also stipulates that labor dispatch employees adopt different forms of wage payment. For labor dispatch employees who implement piece-based wages, the performance (piece-based) salary including overtime pay will no longer be calculated separately. This salary method is the independent management content of the employer and the worker. After calculation, the performance (pieces) salary paid by the human resources company to Qiu has exceeded the overtime salary that should be paid. Therefore, Qiu's claim that overtime pay during the dispute is lacking factual basis and will not be supported.
