Guangdong Yingwu Law Firm
Qiu Junbo Lawyer
Currently, overtime culture is popular in some companies, and you can occasionally see news about young people dying of myocardial infarction due to overwork. Too long overtime and long overtime work have brought great harm to the physical and mental health of young people. As the number of people who die from overwork in recent years continues to rise, more and more people pay attention to rest right .
What holidays and benefits do workers enjoy? The current laws in our country stipulate the right to rest from three levels: the first level is that the " Constitution of the People's Republic of China " stipulates that workers have the right to rest. The second level is that the " Labor Law of the People's Republic of China " stipulates that workers have the right to rest and leave, and stipulates the working hours of workers and other relevant systems such as holiday rest. The third level is that the State Council has issued some specific implementation measures to protect workers' right to rest from different angles.
In real life, our most common holiday is weekends. Weekends are general rest days, also known as public holidays, which are the rest time after a work week.
1994 Before, Chinese workers worked eight hours a day, six days a week, and only had one day off. On March 1, 1994, my country implemented the "Regulations of the State Council on Working Hours of Employees", which stipulated that employees work 8 hours a day and 44 hours a week. State organs and institutions implement a unified working hours. Saturday and Sunday of the first week are rest days, and Sunday of the second week are rest days, which are cycled in turn. This is the "single and double-break system". On average, this system is 5.5 days a week, 8 hours a day, and exactly 44 hours a week. On March 25, 1995, the "Regulations of the State Council on Working Hours of Employees" was revised, and the 44-hour working hours per week was revised to 40-hour working hours per week. The "single and double-break system" has been modified to the "double-break system", that is, Saturday and Sunday are weekly holidays.
However, Article 7 of the "Regulations of the State Council on Working Hours of Employees" has a special clause: Enterprises and institutions that cannot implement the unified working hours stipulated in the preceding paragraph can flexibly arrange weekly rest days according to actual conditions. According to Article 36 of the Labor Law of the People's Republic of China, the state implements an working hours system for workers to work no more than eight hours per day and an average weekly working hours no more than forty-four hours. Article 38 stipulates that employers shall ensure that workers have at least one day off every week. Therefore, some enterprises implement the double-lost system, single-lost system, and odd-lost system are legal. As long as you ensure at least one day off every week, you can work for no more than 44 hours a week.
If you work overtime on your rest day, do you need to pay overtime salary?
There are two ways to compensate workers for overtime work on rest days. One is to arrange compensatory leave, and the other is to pay wages of no less than 200% of the wages.
What is the provision for legal holidays ?
Legal holidays refer to the rest time for celebration and vacation according to the customs and customs or commemorative requirements of each country and ethnic group, which is uniformly stipulated by national laws. In 1949, my country's "Hyper Measures for the National New Year and Anniversary Holidays Measures " stipulated that the national statutory holidays totaled 7 days. There are four holidays every year, one day on New Year's Day, three days on Spring Festival, one day on May Day, and two days on the 11th. In 1999, the "National New Year Festival and Anniversary Holiday Measures" was revised, increasing the number of days off on May Day from 1 day to 3 days, and increasing the number of days off on the "National Day" from 2 days to 3 days. By adjusting the weekend break before and after, three long holidays of 7 days were formed. In December 2007, the "National New Year Festival and Anniversary Holiday Measures" was revised again, and the May Day holiday was adjusted from 3 days to 1 day, and the May Day Golden Week became history. However, statutory holidays for Qingming Festival, Dragon Boat Festival and Mid-Autumn Festival have been added, each with one day off, and a total of 11 days on the statutory holidays.
(one) New Year, one day of holiday (January 1)
(2) Spring Festival, three days of holiday (1st day of the first lunar month, 2nd day of the second day of the lunar month, 1
(three) Qingming Festival, one day of holiday (the day of the lunar month)
(fourth) Labor Day, one day of holiday (May 1)
(Friday) Dragon Boat Festival, 1 day of holiday (Friday) Dragon Boat Festival, 1 day of holiday Day (Day of Dragon Boat Festival in the lunar calendar)
(Saturday) Mid-Autumn Festival, 1 day of holiday (Day of Mid-Autumn Festival in the lunar calendar)
(Seventh) National Day, 3 days of holiday (October 1, 2, 3)
If you work overtime on legal holidays, do you need to pay overtime salary?
If a worker is arranged to work on a legal holiday, the wage remuneration shall be paid not less than 300% of the wages. One thing to note is that the second point of the Ministry of Labor on issuing the "Supplementary Provisions on Issues on the Interim Provisions on Wage Payment" stipulates that if arranging to work on a statutory holiday, the worker should be paid in addition to 300% of the hourly or daily wage standard stipulated in the labor contract , that is, in addition to 300% of the overtime salary, the wages for normal working at that time must be paid.
After working overtime during legal holidays, can enterprises not pay overtime wages by arranging compensatory leave?
cannot be done, overtime salary must be paid.
case sharing (I)
On December 23, 2016, Peng joined Future Technology Company , and successively served as purchasing specialist, deputy product manager, and product manager, with a monthly salary of 10,000 yuan. From October 1 to 3, 2021, Future Technology Company arranged for Peng to work overtime for three days without paying his overtime salary. Peng started maternity leave on May 5, 2022, and gave birth to a girl in the policy of childbirth on May 9, 2022. Future technology companies have paid Peng’s salary until June 2022. On October 18, 2022, Peng asked Future Technology Company by email on the grounds that he was forced to terminate the labor relationship on the grounds that he "failed to pay labor remuneration in a timely and full manner", and the labor relationship between the two parties was terminated on the same day. After the labor relationship was terminated, the two parties were unable to reach an agreement on the compensation issue. Peng proposed labor arbitration in accordance with the law, requesting Future Technology Company to pay a total of 35,000 yuan in maternity leave and reward fare wage difference from May 5, 2022 to October 18, 2022; pay 4,138 yuan in overtime wages for the statutory holidays from October 1 to 3, 2021; and pay 60,000 yuan in economic compensation for forced termination of the labor contract.
Future Technology Company defended that Peng had arranged for a make-up leave after working overtime from October 1 to 3, 2021 and there was no need to pay overtime pay.
arbitral tribunal believes that in the future, the technology company owes Peng 3.5 months' wages, and Peng has the right to terminate the labor contract. Peng has worked at Future Technology Company for more than 5 years and 9 months. Future Technology Company should pay 60,000 yuan in economic compensation for being forced to terminate the labor contract. Although Future Technology Company claims to have arranged for Peng to work overtime from October 1 to 3, 2021, according to Article 44 of the Labor Law of the People's Republic of China, if an employer arranges workers' labor during statutory holidays, the employer cannot be exempted from the employer's responsibility for paying overtime pay due to the adjustment of leave. Therefore, Future Technology Company should pay Peng 4,138 yuan overtime pay on statutory holidays.
What are the regulations for paid annual leave?
Paid annual leave is a certain period of continuous rest vacation that workers enjoy in accordance with the law after working for one year. Article 45 of the Labor Law stipulates that the state implements a paid annual leave system. Workers who work continuously for more than one year will enjoy paid annual leave. The specific measures shall be stipulated by the State Council. In 2007, the State Council promulgated the " Regulations on Paid Annual Leave for Employees ", which clearly stipulates that employees of institutions, groups, enterprises, institutions, private non-enterprise units, individual industrial and commercial households with employees who work for more than one year will enjoy paid annual leave. If an employee has worked for a total of less than 10 years, he shall have 5 days of annual leave; if he has worked for less than 10 years, he shall have 10 days of annual leave; if he has worked for less than 20 years, he shall have 15 days of annual leave. National statutory holidays and rest days are not included in annual leave holidays.
Can you enjoy the full attendance award after taking annual leave?
The "Regulations on Paid Annual Leave for Employees" stipulates that employees enjoy the same salary income during the annual leave as during their normal work period. Therefore, taking annual leave does not affect the full attendance award, and employers should not indirectly hinder employees from enjoying annual leave on the grounds that they "cannot enjoy full attendance award". What are the circumstances in which employees cannot enjoy the annual leave of that year?
Employees who have one of the following circumstances will not enjoy the annual leave of the year:
(I) Employees enjoy winter and summer vacations in accordance with the law, and their number of days of leave is more than the number of days of annual leave;
(II) Employees who have been working for more than 20 days in total and the unit does not deduct wages in accordance with regulations;
(III) Employees who have been working for more than 10 years have been working for more than 2 months in total;
(IV) Employees who have been working for more than 10 years have been working for more than 20 years have been working for more than 3 months in total;
(V) Employees who have been working for more than 20 years have been working for more than 4 months in total.
Some units stipulate that annual leave will be invalid and invalid if it is not finished at the end of March of the following year. Is this regulation legal?
is illegal. The "Regulations on Paid Annual Leave for Employees" clearly stipulates that employers will arrange annual leave for employees based on the specific situation of production and work, and consider the employees' own wishes. Annual leave can be arranged in a centralized manner or in segments within one year, and is generally not arranged across years. If the unit is really necessary to arrange annual leave for employees across the year due to production and work characteristics, it can arrange it across one year. If the unit is unable to arrange annual leave for employees due to work needs, the employee may not arrange annual leave for employees with the consent of the employee. For the number of annual leave days that an employee should take but not take, the unit shall pay the annual leave salary based on the employee's daily salary income of 300% . It can be seen from this that arranging paid annual leave for employees who meet the conditions is a legal obligation of the employer. Of course, if it is necessary to arrange annual leave for employees across the year due to production and work characteristics, it can also be arranged across one year, but it does not mean that after the annual leave, the corresponding rights of workers who have not finished their annual leave will be completely lost.
Case Sharing (II)
Niu entered the Future Technology Company Office on April 30, 2006 and served as the regional director. The two parties have signed a labor contract. On October 30, 2018, Future Technology Company issued a dismissal notice to Niu, which stated, "In view of the serious violation of the relevant provisions of the 'employee manual' during your employment and seriously infringed on the interests of the company, the company's research and decision will terminate the labor relationship with you. The date of termination of the labor relationship will be October 30, 2018. The subsequent lawsuit will be filed and relevant legal responsibilities will be pursued. Please leave the company's office from now on. All your treatment will be handled in accordance with the provisions of national laws and the provisions of the labor contract." Niu worked until October 30, 2018.
On November 7, 2018, Niu applied for arbitration from Labor and Personnel Dispute Arbitration Committee , requiring Future Technology Company to pay 300,000 yuan in compensation for illegally terminated labor contracts and pay 30,000 yuan in annual leave wages from January 1, 2017 to October 30, 2018.
Future Technology Company defended Niu for suspected leakage of commercial secrets, which was an illegal act. Future Technology Company has the right to terminate the labor contract, so it does not agree to pay compensation for illegally termination of the labor contract. The "Employee Manual" stipulates that annual leave will be invalid and invalid if it is not finished at the end of March of the following year. Niu signed and confirmed in the "employee manual", that is, Niu knew that the annual leave expired and was invalid, but Niu did not apply for annual leave in a timely manner, so he did not need to pay the annual leave wage without taking it.
Arbitral Tribunal found out: 1. The employee manual of the Future Technology Company stipulates that if the annual leave that year is not completed at the end of March of the following year, it will be invalid and invalid. Niu signed the last page of the employee manual. 2. Niu had a cumulative working experience of 10 years in 2017. He should enjoy 10 days of annual leave in 2017 and 8 days of annual leave in 2018. Niu now enjoyed 3 days of annual leave in 2017 and 1 day of annual leave in 2018. 3. Niu has been leaking future technology companies' business secrets to outsiders.
Arbitral Tribunal believes that although the future technology company employee manual has provisions for expiration of paid annual leave and is invalid, it violates the mandatory provisions of laws and regulations and should be invalid.Now Niu has enjoyed 3 days of paid annual leave in 2017 and 1 day in 2018. In the future, technology companies should pay Niu’s corresponding salary from January 1, 2017 to October 30, 2018. The evidence provided by Future Technology Public can prove that the fact that Niu, who claimed, had a high possibility of leaking commercial secrets to a non-party, was determined to exist. Therefore, it was not improper for Future Technology to terminate the act on this ground. It was recognized that it was not a good idea for Future Technology to terminate the labor contract.
If the employee actively asks for annual leave, will the company still need to pay 300% of the salary?
If the conditions meet, the company only needs to pay the normal working salary. Article 10 of the " Implementation Measures for Paid Annual Leave for Enterprise Employees " stipulates that if an employer arranges an employee to take annual leave, but the employee proposes to take annual leave in writing for his own reasons, the employer may only pay his salary income during his normal working period. That is, only when the employer arranges employees to take annual leave, but the employee expresses his or her endless annual leave due to his or her own reasons and in writing, the employer can only pay his or her wages during his or her normal work period.
reprinted from Heyuan Judicial Administration
