"I knew that it was illegal for the company to do this, but after the holiday notice was issued, the work group was full of 'received' so that I could only choose to accept and obey. "During the Spring Festival holiday just past, Ms. Chen, who worked in a real estate company in Chengdu, Sichuan, took a "hard-won" long vacation, "From the first to the third day of the new year, the company gave 2 days of compensatory leave, and the remaining 3 days were 'spelled' out with public holidays and compensatory holidays." ”
How to calculate overtime pay on statutory holidays, and can it be replaced by compensatory leave? If the employer fails to pay or fails to pay the overtime pay in full, how can the employee protect his or her legitimate rights and interests? The reporter interviewed about this.
3 times the overtime salary becomes a subsidy of 300 yuan
Ms. Chen said that in addition to the "shrinkage" of the length of the Spring Festival holiday, she was even more dissatisfied with the fact that "like our marketing position, except for the Spring Festival, other statutory holidays generally do not have holidays, and there is no additional overtime pay." Before the Spring Festival holiday this year, the company issued a notice saying that if you work overtime from the first to the third day of the new year, there is a subsidy of 300 yuan per day, "but this subsidy is far from reaching the standard of three times the salary on statutory holidays."
Xiao Liu, who works in a medical technology company in Zhuzhou, Hunan, told reporters that he only learned after a period of time that the company gave each person 4 days off per month, and employees did not take time off when they encountered national holidays. "Someone suggested to the leader, but the answer was: don't go with legal holidays. Since he signed a labor contract with the company, Xiao Liu could only choose to accept it helplessly.
Lan Wenjing, a full-time lawyer at Beijing Yingke (Zhongshan) Law Firm, said that according to the provisions of the Labor Law, statutory holidays are paid holidays, and any employee who signs a labor contract with an employer (including the establishment of a de facto labor relationship) is entitled to paid leave on statutory holidays from the beginning of the establishment of the labor relationship.
According to Article 44 of the Labor Law, if an employee is assigned to work on a rest day and cannot arrange a compensatory break, he shall be paid a wage remuneration of not less than 200% of the wage; If a worker is assigned to work on statutory holidays, he or she shall be paid a wage remuneration of not less than 300% of his wages. In other words, if an employer arranges an employee to work overtime on a statutory holiday, in addition to paying one time of the day's wages normally, it also needs to pay three times the overtime wages according to the employee's daily or hourly salary. Lan Wenjing said.
However, not all workers are entitled to overtime pay on statutory holidays. "China's working hours system is divided into standard working hours system, comprehensive calculation working hours system, and irregular working hours system. Under the standard working hours system and the comprehensive calculation of working hours system, if the employer arranges the employee to work on statutory holidays, it shall pay three times the wage. Lan Wenjing added that under the irregular working hours system, whether an employer needs to pay overtime pay for arranging workers to work on statutory holidays is mainly based on local regulations, and is implemented in accordance with local wage payment regulations.
Some small and medium-sized enterprises use the exercise of employment autonomy as an excuse to reduce costs by deducting workers' wages, which is obviously unreasonable and illegal. Lan Wenjing said that if the relationship between Xiao Liu and the company is a labor relationship, Xiao Liu's salary and compensatory leave standards during holidays usually depend on the specific content of the labor contract, so whether he can get three times the overtime salary on statutory holidays needs to be determined according to the labor contract. This also reminds the employee that when signing the labor contract, the employee should clearly negotiate with the other party on the issue of holiday pay in the labor relationship, and make a clear agreement in the contract. ”
After the holiday, "one for one" compensatory rest
In addition to the "deduction" of overtime pay on statutory holidays without reason, some employees encounter situations where employers replace overtime pay with compensatory leave.
Mr. Yang is engaged in channel marketing in a ** company, and the two parties signed a labor contract, implemented a standard working hour system, and agreed that all overtime work will be compensated by compensatory leave after the fact, and the company will not pay overtime pay. During the Spring Festival holiday, the company asked Yang and other salesmen to use the holiday to develop their business, and then "one for one" after the holiday.
Yang believes that the first to third days of the Lunar New Year are statutory holidays and cannot be paid in lieu of overtime pay by means of compensatory leave. Subsequently, Yang went through litigation procedures and demanded that the company pay overtime pay on statutory holidays.
In the end, the court held that the agreement between a ** company and Yang on overtime pay was invalid due to the exemption from its own legal obligations, and the company should pay Yang overtime pay from the first to the third year of junior high school according to the standard of 3 times the salary. For the rest of the rest of the Spring Festival holiday, the company has arranged for Yang to take compensatory leave, and overtime pay will not be paid.
Zhen Yiyi, assistant judge of the Beijing Haidian District People's Court, said that overtime work on rest days can be replaced by compensatory time off, but overtime work on statutory holidays cannot be exempted from overtime pay through compensatory leave.
In China, the right to leave is guaranteed by weekends and statutory holidays, but there are still differences in the nature of statutory holidays and weekends. The reason why overtime pay cannot be replaced by compensatory time off on statutory holidays, Zhen Yiyi explained, is that if workers are arranged to work overtime on statutory holidays such as the Spring Festival, it will cause workers to miss out on spiritual and cultural life and social activities of a specific significance, which cannot be remedied afterwards.
"Hidden labor relations" reduce liability
It is understood that some employers, when entering into labor contracts with employees, will use the so-called "mutual agreement" to ask the employees to sign cooperation agreements, labor agreements, contract agreements, etc., and cover up the essence of the labor relationship by establishing a "hidden labor relationship" in order to reduce their own responsibilities.
Lan Wenjing reminded that in order to avoid falling into the trap of "hidden labor relations", workers should pay attention to keeping all kinds of daily work evidence during work while keeping the contract text, such as attendance records, communication or chat records in daily work, salary slips, bank statements, work clothes, work cards and other evidence.
In view of the labor disputes arising from the employer's failure to pay or not pay overtime pay in full, Lan Wenjing suggested that the employee should first resolve it through negotiation. If the negotiation is invalid, it may apply for mediation to the enterprise labor dispute mediation committee, the grassroots people's mediation organization established in accordance with the law, and the organization with labor dispute mediation functions established in townships and neighborhoods. In addition, it can also be resolved by reporting or complaining to the labor administrative inspection department, applying for labor arbitration, and filing a lawsuit with the people's court.
According to Article 30 of the Labor Contract Law, if an employer is in arrears or fails to pay labor remuneration in full, the employee may also apply to the local people's court for a payment order in accordance with the law, and the people's court shall issue a payment order in accordance with the law.
*:Worker**.
Breaking news and rights protection channel: the application market **"Chen**" client, search for "help" and go directly to the "Chenyi Help" platform with one click; Or call **0731-85571188. Special 19176699651 for government and enterprise content services.