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Can paying overtime pay by taking compensation leave?

Tue, 17 Apr 2018 16:23:00 PM GMT + 7    Print   Email   Share:

 (Chinhphu.vn) –Ms. Nguyen Thi Luong Phuoc's company (in Ho Chi Minh City)  has fixed a weekly holiday on Sunday. Recently, the company participated in trade fairs in a period of 1 week. Employees were commited to work from Monday to Sunday (the overtime was on Sunday).

 

But her company did not pay employees for overtime on the Sunday as a stipulated, but arranged for them to take a compensation leave on another day. Ms. Phuoc would like to ask, did the company do right according to regulations?

Lawyer Tran Van Toan, the Khanh Hung Lawyer’s Office – the Hanoi Bar Association respond to Ms. Phuoc as follows:

Labor Code has stipulated that the normal working time is 8 hours in a day and 48 hours in a week. Overtime is the period of work that be not included the normal working hours stipulated in the law, the collective labor agreement or the labor regulation.

Point b, Clause 1, Article 97 of the Labor Code, employees who work overtime on weekends are paid at least equal to 200% based on wage unit for piece work or piece rate, or the wage of his/her current work

According to Point c, Clause 2, Article 106 of the Labor Code, detailed in Clause 3, Article 4 of Decree No. 45/2013 / ND-CP, as follows: After a period of maximum 7 consecutive days of overtime work during one month, the employer must arrange for compensatory leave for the duration in which the employee has not taken the leave.

Based on the above provisions, if the employer organizes overtime work for a maximum of 7 consecutive days, including Sunday, the company must pay wages as stipulated in Item b, Item 1, Article 97 of the Labor Code for the overtime work on Sundays, but not pay for the day off (because the weekly leave is unpaid salary).

In the case of Ms. Nguyen Thi Luong Phuoc, at the company she worked, fixed a weekly holiday on Sunday. Recently, the company participated in trade fairs in a period of 1 week. Employees were held on a continuous basis from Monday to Sunday (overtime on a Sunday). But the Company did not pay employees for overtime on Sundays according to the regulation, but arranged for employees taking a compensation leave on another day.

If the situation is the same as Ms. Phuoc reflected, the company only organize overtime on a Sunday during a week of participation in the fair, do not organize overtime for many consecutive days in a month, so in this case, the company shall have to pay wages as prescribed at Point b, Clause 1, Article 97 of the Labor Code for employees working overtime on the Sunday; There is not any regulations of taking compensation leave on this case.

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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