How is the working day determined?
Ms. Nguyen Thi Phuong Thao (HCMC) works at a private car garage, does not have a labor contract and does not pay social insurance, has no fixed days off, and works almost every day in the month.
On the holiday of September 2, due to the shop's repair, all employees have two days off on September 1 and September 2. Ms. Thao asked, if she takes the number of days in the month minus the prescribed Sundays and holidays, is it correct or wrong to calculate the number of days in September?
In this regard, the Ministry of Labor, War Invalids and Social Affairs replied as follows:
The fact that the employer does not sign a labor contract and pay social insurance for the employee is prohibited by law. According to the provisions of Clause 1, Article 54 of Decree No. 145/2020/ND-CP dated December 14, 2020 of the Government, the time-based salary is paid to employees based on the actual working time by month, week, day, hour.
Monthly salary is paid for a specified working month on the basis of an employment contract. Daily wages are paid for one working day. In case the labor contract agrees on a monthly salary, the daily salary is determined by the monthly salary divided by the number of normal working days in a month according to the provisions of law selected by the enterprise.
In the case of enterprises applying the form of monthly salary payment, the employee's salary is paid for a specified working month on the basis of the labor contract (if the employee works a full number of working days in the month, the enterprise must pay the full monthly salary stated in the labor contract). For the employee's unpaid days off in the month, the enterprise shall base on the method of determining the daily salary according to the above guidance to deduct the employee's salary for the unpaid leave days.
By: Translator: LeAnh-Bizic/According to Chinhphu.vn (Government Newspaper).
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