National holiday system: annual holidays

Legal risk indication:

   Labourers shall have the right to rest is one of the basic civil rights prescribed by the constitution of China, but also one of the basic principles of labor law. China's "constitution" article43The provisions of the people's Republic of China, workers have the right to rest. The national development and the rest and training facilities, set working hours and off system. "Labor law" provisions of article3About the rights of workers in the general provisions of workers "have the right to rest and vacation", and in the fourth chapter, with the35Through article45A detailed coverage of workers rest and vacation provisions to do. We can take the law of our country in the vacation system is divided into general and special holiday vacation, mainly including public holiday and legal holiday; the latter includes marriage, funeral leave, maternity leave, home leave and paid annual leave for employees. "Labor law" to the employer prolong the working hours of workers, workers are arranged on public holidays and statutory holidays and shall make or pay a certain amount of wages paid to do a more detailed provisions, so even if the workers and controversial in this regard by the employer to the employee based on "labor law" to adopt corresponding remedy measures. The legitimate rights and interests of workers more vulnerable is a special vacation rights, especially the rights of workers paid leave.

Employees paid vacation system refers toThe workers work for more than a year, can enjoy a certain time of paid annual leave. Here the "work for more than a year", refers to the total working time of workers, including in the same unit, including in different units of work time. Moreover, the leave with pay is not in conflict with the marriage, funeral leave, maternity leave, family leave, that is to say, even if the workers have already had a marriage, funeral leave, maternity leave or family leave, when meets certain conditions which still enjoys the right to paid leave. But in the actual operation of many employers to understand or to workers account for only in their work units for more than a year to enjoy, or to the laborers have had a marriage maternity leave or family leave for violations of workers paid leave right. 

The level of risk:☆ ☆ ☆ ☆

Risk aversion measures:

A typical case: 

The Spring Festival is not full wages for overtime Hospitals are paid wages cleaner balance

   Due to the hospital fails to make full payment for the holidays and overtime pay, Ms. Wang to the court request any payment.2Month4Day, the Shanghai Minhang District people's court, the hospital to pay Ms. Wang overtime wages, overtime wages difference and statutory holidays overtime wage differences in total1291.96Element, and pay25%Compensation322.99Element. The fees for arbitration300Yuan, the burden of the hospital.

   50Old Wang Jiangjin, Chongqing Ren Tuo Zhen migrant workers coming to shanghai,2005Years2Month1Date, as a cleaner in a hospital in Minhang District.2007Years2January6During the month of wages for the month750Element. After the expiry of the contract, Ms. Wang that the hospital without full payment of wages and the arbitration award, but only support some request. Ms. Wang refuses to accept the arbitration award went to court, for any hospital payment2007Years2Month1To2007Years6Month30Day weekend, holiday overtime pay1826.52Yuan and25%Economic compensation456.63Element. The fees for arbitration300Yuan, the burden of the hospital.

   Ms. Wang claimed,2007Years2Month1To2007Years6Month30To date, each week to do six have a hospital, not off the arrangement, also did not pay overtime wages. There are two weeks of rest, the hospital only pay overtime wages 20Element1Day. Hospital argued that, Ms. Wang in the hospital work time,2007Years4Month1The day before to do six cease one, but2007Years4Month1Date, changed to five and a half days a week, rest for a day and a half. So we think the difference need not pay Ms. Wang rest day, legal holiday overtime wage.         

   Court identified, Ms. Wang in the2007Spring Festival, labor day each overtime2Day. The hospital by40Element1Pay day standard.The court thinks, the worker work of the off day arrangements cannot arrange the leave, the employer shall pay the worker's wages not lower than200%Wages, working in statutory holidays, the employer shall pay the worker's wages not lower than300%Wages. The hospital provides that the failure to pay payroll, Saturday overtime pay, also failed to pay in full the statutory holiday overtime wages. The hospital is wrong. The rational part of Ms. Wang argued, support. But Ms. Wang from work in the hospital rules work late time behavior, can not be regarded as overtime. (source: People's court case Authors: Yang Keyuan    Release time: 2008-02-05 08:35:24)

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Beijing Shen Binti the labor law service address: Beijing Dongzhimen South Street No. 3 building 18 floor, even smell the law firm; e-mail:Shenbinti@yahoo.com.cn  Business telephone: (+86)15301115671 (+86) 13661313967 ; interactive blog: http://blog.sina.com.cn/shenbinti

Shen Binti's brief introduction: Shen Binti, female, Beijing City Labor and Social Security Law Association, Xiamen University, master of law, Beijing labor law expert, Beijing Wen law firm partner. Research on the legal disputes in the Shen Binti lawyers professional solution, focus on the cases of labor disputes and labor law, labor law training service as a special consultant. Practising address: Beijing Dongzhimen South Street No. 3 has 18 floor building; e-mail:Shenbinti@yahoo.com.cn Business telephone: (+86) 15301115671 (+86) 13661313967 ; interactive blog: http://blog.sina.com.cn/shenbinti