Is it possible to arrange compensatory leave instead of overtime pay?

Mon, 18 Feb 2019 13:47:00  |  Print  |  Email   Share:

(Chinhphu.vn) –Ms. Ha Nguyet's company (hanguyet66 @ ...) requires employees to work on holidays, but does not pay salary for working holidays in accordance with the Labor Code but arranges employees to take off for 3 days. Ms. Nguyet would like to ask, is that appropriate?

Lawyer Tran Van Toan, Khanh Hung Lawyer’s Office - Hanoi Bar Association responds this issue as follows:

Clause 1, Article 115 of the Labor Code stipulates that employees are entitled to leave of work and enjoy full pay in the following holidays and Tet Festival:

1. An employee is entitled to fully paid days off on the following public and New Year holidays:

a/ Calendar New Year Holiday: 1 day (the first day of January of the calendar year);

b/ Lunar New Year Holidays: 5 days;

c/ Victory Day: 1 day (the thirtieth day of April of each calendar year);

d/ International Labor Day: 1 day (the first day of May of each calendar year);

e/ National Day: 1 day (the second day of September of each calendar year);

f/ Commemorative Celebration of Vietnam’s Forefather - Kings Hung: 1 day (the tenth of March of the lunar year).

Clause 1, Article 97 of the Labor Code stipulates that an employee who performs overtime work must be paid according to the wage unit or wage for his/her current job as follows:

On normal days, at least equal to 150%; on weekends, at least equal to 200%; on public holidays and paid leave days, at least equal to 300%, excluding the wage for public holidays and paid leave days of employees who receive daily wages.

Thus, the employee who works overtime on any day is paid an extra wage based on that day. If an employee is mobilized to work overtime on a holiday, he / she shall be entitled to at least 300% of his / her wage according to his / her current job, excluding the daily wage for laborers enjoying daily wages.

The calculation of overtime salary is implemented in accordance with Article 6, Article 8 of the Circular No. 23/2015 / TT-BLĐTBXH dated June 23, 2015, amended by Point c, Clause 4, Article 14 of the Circular No. 47 / 2015 / TT-BLĐTBXH dated November 16, 2015 of the Ministry of Labor, War Invalids and Social Affairs.

According to the lawyer, to ensure the rights of workers to work overtime on holidays, the company where Ms Ha Nguyet works can flexibly apply regulations on overtime pay, instead of paying wages. Overtime work at least 300%, arranged to make up for compensation by 3 working days (compensated rest days), while the company still has to pay 100% of that holiday's salary to employees according to regulations of Clause 1, Article 115 of the Labor Code.

The company needs to coordinate with trade unions, motivate, explain the reasons for workers to agree with the plan to settle off for 3 days with salary instead of paying the above hourly salary.

Lawyer Tran Van Toan,

The Khanh Hung Lawyer’s Office –the Hanoi Bar Association

By: Online Newspaper of the Government / Translator: HaiYen-Bizic

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