Author: Hao Yunfeng, LL.M., Founding Partner of Beijing Puran Law Firm.
Author: Peng Ranqing, LL.M., Beijing Puran Law Firm, lawyer.
In the daily operation of enterprises, it is inevitable that employees need to travel to various places. Keeping employees on duty during a business trip is a challenge. If the enterprise stipulates in the rules and regulations that attendance and overtime will not be counted during the business trip, is this provision valid?We interpret it through a judicial precedent.
1. Basic facts of the case
On July 3, 2017, Ke joined Beijing Xinyuan Guoneng Technology Group Co., Ltd. (hereinafter referred to as Xinyuan Guoneng Company) as an assistant soil engineer and provided actual labor until September 10, 2019. Ke believes that he worked a total of 32 days of overtime on weekends and 4 days on statutory holidays during his employment, all of which occurred during his business trip, of which 10 days of overtime on weekends and weekends had been compensated from October 22, 2018 to November 2, 2018. Ke filed an arbitration application with the Shunyi District Labor and Personnel Dispute Arbitration Commission, demanding that Xinyuan Guoneng Company pay 12,936 yuan of overtime wages on weekends and 3,528 yuan on statutory holidays from July 3, 2017 to February 28, 2019.
Xinyuan Guoneng asserted that the "Employee Handbook" was revised in October 2018, stipulating that overtime and attendance are not counted during business trips, and the revised employee handbook was implemented on November 9, 2018, and has been publicized in accordance with the provisions of the "Labor Contract Law", and solicited opinions from all employees. Ke said that he knew that the "Employee Handbook" had been revised in October 2018, but at that time, he was not clear about the specific content during a business trip, and the content of flexible work was not legal. The committee ruled that Xinyuan National Energy Company should pay Ke 10,298 overtime wages on weekends from July 3, 2017 to November 8, 201885 yuan, overtime pay on statutory holidays 309866 yuan. Xinyuan Guoneng Company was dissatisfied with the above-mentioned arbitral award and sued the court of first instance.
2. The Court held that
Ke acknowledged that the signature on the Employee Handbook on February 7, 2018 was signed by him, and the signing form showed that the employee confirmed that he had received the Employee Handbook sent by Xinyuan Guoneng Company, and that he had read, understood, and was willing to abide by the system stipulated in the Employee Handbook. Ke shall bear the corresponding legal responsibility for his signature, and his signature on the signing form means that he has received the above-mentioned "Employee Handbook" and shall abide by the provisions of the "Employee Handbook". Ke recognized the revision of the "Employee Handbook" of Xinyuan Guoneng Company in October 2018, although he claimed that the specific content was not clear, but the content of the "Employee Handbook" was related to his vital interests, and stipulated the general code of conduct for employees and the special rules and regulations that should be complied with, so Ke should have understood and mastered the specific content of the employee handbook on the premise of knowing the revised employee handbook, but he did not raise an objection and should bear the corresponding adverse consequences. According to the "Employee Handbook" signed by Ke on February 7, 2018 and the "Employee Handbook" that Xinyuan Guoneng Company later implemented on November 9, 2018 According to life and work practice, employees are relatively flexible in the arrangement of working hours during business trips, so attendance and overtime are not recorded, which has a certain degree of reasonableness, and the court did not support Ke's request for Xinyuan National Energy to pay overtime wages during business trips after February 7, 2018 under the circumstance that Ke did not raise an objection to Xinyuan Guoneng Company on the above provisions.
3. Lawyer's Analysis
According to the Labor Law and related regulations, employees should be paid overtime if they work outside the legal working hours. However, the law does not specify whether overtime pay should be included during a business trip. Therefore, if the enterprise stipulates in its rules and regulations that employees do not count attendance and overtime during business trips, it does not violate the mandatory provisions of the law and should be legal and valid.
Enterprises formulating rules and regulations that involve the vital interests of employees shall clearly inform employees. Employees need to put forward their opinions and negotiate with the company in a timely manner. If the employee does not raise an objection, after the rules and regulations come into effect, the employee claims that the rules and regulations are invalid on the grounds that the formulation of the rules and regulations is illegal, and will not be recognized by the court.
If the employee does work overtime during the business trip, the enterprise shall pay the overtime pay in accordance with the law. If an employee claims to work overtime, he or she shall bear the burden of proof for the existence of overtime, and the court will make a comprehensive judgment based on the evidence.
We suggest that companies can improve their internal rules and regulations to clarify how overtime pay is calculated during business trips. Labor and management can seek to reach a consensus, which can reduce internal conflicts and safeguard the common interests of the enterprise and employees.
1] See (2020) Jing 03 Min Zhong No. 4154 Civil Judgment.