2008In May 22nd, QQ 1023*****, nicknamed "in * *", claiming the 23 year old man, working in Hangzhou netizen said: now we will work overtime provisions to your company, I would like to ask whether such law:

   About the company employees work overtime management regulations

   A, objective: to standardize the company employees work overtime management, safeguard the legitimate rights and interests of the company and employees

   Two, applicable to: all employees

   Three, the implementation of measures

   1, work overtime must be strictly controlled. Time staff (non quota employees work overtime is not allowed in principle).

   2, as the production of the work identified the need to work overtime, we can arrange overtime.

   (1) unit personnel (quota staff) for approval by the section, the manager, the integrated management department for the record.

   (2) - time staff (non quota staff) application, by every department audit, approved by the general manager, the integrated management department for the record.

   3, must be in before five days per week to work overtime personnel list, approval before implementation, otherwise invalid. Special cases have been working overtime, must also be in the morning of the second day ago according to actual overtime re submit the application procedures.

   Four, middle-level cadres to work longer hours, excluding overtime.

   Five, the following situations not work overtime:

   1, because the business is not skilled and prolong the working time;

   2, outside normal working hours reading technical information or training;

   3, within the normal working hours to participate in training leading to work 8 hours outside;

   Away 4, normal working hours in the company or the company's departments of the organization of public activities;

   Declaration of overtime shall not during the 5, staff travel.

   In view of the recent advisory work longer hours of net friend of many, therefore the question I do the following answer:

   First, the so-called overtime, refers to workers in accordance with the requirements of the unit leadership, engaged in their production or work in legal festivals or holidays. The so-called dot, refers to workers in accordance with the requirements of the unit leadership, continue to engage in production or work outside normal working day. The extension of working hours (Overtime), is the highest limit refers to the laborers working hours each working day more than the law, regulations of the work day and the number of working days of the week. Therefore, the company to work overtime regulations fifth paragraph 1-4, as long as the unit is the job task of administrative leadership arrangement, are working overtime to extend working hours, the unit provides that "no overtime", there is no legal basis, no legal effect on the workers.

   Second, the work is work time, refers to workers according to the provisions of the laws and regulations, for the completion of their work time in the employing unit. The main form of man hour working day, means the labor law in one day and night working time length. The so-called standard working hour system, by means of a working hour system legislation in the form of the provisions of the longest limit workers to perform their obligations and time consuming. According to the relevant provisions of the "labor law" of the people's Republic of China and the State Council "about thirty-sixth staff working time regulations", the standard man hour system of our country current workers daily working time is not more than 8 hours, the average weekly working time is not more than 40 hours.

   Third, enterprises can implement 6 working days per week? According to the labor department "on working time issues related to reply" the relevant provisions, qualified enterprises should be in accordance with the "people's Republic of China Labor Law" and the State Council "on the staff working time regulations" the relevant provisions, the workers to work 8 hours a day, working 40 hours a week of this standard man hour system. However, some enterprises to implement the standard working hours system due to the nature of the work and production characteristics cannot ensure that workers, in the daily working time is not more than 8 hours, average weekly working time is not more than 40 hours, can also implement 6 working days per week.

   Fourth, the employer shall not compel employees to work overtime, this is "labor contract law" thirty-first stipulates clearly defined. The employer arranges laborer to work overtime, first of all, must be the employer's needs of production and operation, really need to lengthen working hours; second, must negotiate with the trade union, the trade unions agreed, if the Union did not agree, can not compel employees to work overtime; again, must move in consultation with the labor, if the employee does not agree, is not to force overtime; finally, the length of time limits for overtime the employer must comply with the labor law, namely the day shall generally not exceed one hour, due to special reasons need to extend the working time, prolong the working time in the protection of labor health conditions shall not exceed 3 hours a day, but the monthly total overtime shall not exceed 36 hours. Otherwise, if the report or was found, it should be punished in accordance with the regulations on labor protection and supervision.

   Fifth, the employer shall not disguised compel employees to work overtime. According to the spirit of "labor contract law" article thirty-first, the so-called "disguised" compel employees to work overtime, mainly refers to the actual ability to work regardless of the majority of workers, employers do not negotiate with the worker, unilateral provisions of the labor quota is too high, can not be completed in less than 8 hours for most workers, single price and too low, forcing workers to work overtime this is a more common, illegal behavior. In order to ensure the quota level to science, advanced and reasonable, in the formulation of the quota shall meet three requirements: one is to determine a product or a work consumption, must have scientific basis, which refers to the design documents, process documents, quality standards, the past quota statistics, same type of similarity quota information under the conditions; two is to summarize the advanced experiences and promotion of labor saving, mining, improve labor productivity potential, ensure the advance of the quota level; three is to ensure that the same work quota unified and different work (including different production units, different types, different products) quota level balance. According to labor law and the relevant administrative regulations, workers working on the basis of piecework, reasonably determine the quotas and standards of piecework remuneration in the employing unit shall, according to the daily 8 hours, 40 hours per week standard time, make the most of the workers in normal working condition, can be done in the standard working hours.

   Sixth, the special worker does not work overtime. Provisions for women and minors special protection according to the relevant provisions of the labor law and the other countries, no employing units arranged for minors, pregnant women and lactation is not full 12 months baby female worker to work overtime outside normal working day.

   Seventh, holiday overtime shall be included in the monthly not less than 36 hours. According to the labor department "on working time reply about the provisions of the" labor law "," the people's Republic of China, the provisions of article forty-first, holiday overtime shall be counted in the total monthly number, the so-called holiday overtime without law, no more than 36 hours per month limit argument, there is no legal on the basis of.

   Eighth, the workers shall not refuse to work overtime. According to "people's Republic of China Labor Law" and "Labor Department on the implementation of the State Council on employees' working time regulations' implementation measures" provisions, the employer has one of the following circumstances and urgent task, workers shall not be refused to extend the working time: (a) the occurrence of natural disasters, accidents or other reasons, the people's health and safety of state property and under threat, in need of emergency treatment; (two) production equipment failure, transportation lines or public facilities, affecting production and public interests, must be timely repair; (three) must use legal festivals or holidays shutdown period of equipment maintenance, maintenance (; four) to complete the defense emergency tasks, or arrange to finish higher in the state plan and other emergency tasks, as well as the commercial, supply and marketing enterprises completed the acquisition, transportation, processing of agricultural and sideline products an urgent task in season. In the special circumstances, conditions for employees' organizational units to lengthen working hours can not be required by law.

   Ninth, a comprehensive calculation of working hours a worker to work overtime should be paid overtime wages. According to the labor department "on the implementation of 'issues' labor law of the people's Republic of China on" the provisions of article sixty-second, the comprehensive calculation of working hours of employees, work is just weeks of rest days, belongs to the normal work; working day is just the legal holidays, shall be not less than the normal my daily wages 300% criteria to pay overtime wages. Enterprises with a comprehensive calculation of working hours is not pay the overtime pay, belong to illegal behavior.

   Tenth, the labor remuneration shall be paid in accordance with the law to extend the working hours. Basis "labor law" the people's Republic of China, the provisions of article forty-fourth, the employer arranges laborer to work longer, should be in the payment of workers wages and other normal, according to the following standard pay salary: (a) the employer arranges laborer to work longer hours in outside, legal standard working hours, pay wages according to not under the laborer hour salary standard 150%; (two) the employer shall arrange laborer to work on a rest day, but not off the arrangement, according to the 200% branches of not less than the employee day or hour salary standard pay salary; (three) the employer shall arrange laborer to work in legal holiday, the payment of wages in accordance with no below the laborer of daily or hourly wage standard 300%, and shall not be used instead of paying overtime pay off. It should also be noted that, according to the Ministry of labor and social security issued the "minimum wage", the minimum wage workers should not including overtime pay.

   Eleventh, the base for calculating overtime. According to the regulations, overtime should be calculated according to the total wages of staff as the base. Total wages should be based on the National Bureau of statistics 1 orders shall prevail, including basic wages, job wages, bonuses, allowances and subsidies, overtime pay, special circumstances wages for all workers income, or so before 12 months with the average number of bureau of statistics 1 orders of the total income divided by 12 months as the base. Some units only the basic wage of workers as the base to calculate overtime is not correct.

   Twelfth, a worker to work overtime wages shall be in accordance with the law and regulations at. In 2008, the Ministry of labor and social security issued the "about worker average monthly working hours and salary conversion notice", in which the workers, overtime wages conversion approach is: according to the provisions of this "new year and national regulations" Memorial Day holiday, all public holidays from 10 days. The 11 day. Accordingly, employee average monthly system working days and salary conversion measures were adjusted to 1, the average number of working days: System: working for 250 days [365 days --104 days (day) --11 days (holidays) = 250 days working days; season 62.5 days [250 days / 4 season = 62.5 days / season]; monthly work days for 20.83 days [250 days, December = 20.83 days / months]; calculation of working hours: the month, season, year multiplied by the daily 8 hour working day. Reduced wage 2, daily wages, hours: in accordance with the "labor law" provisions of article fifty-first, statutory holidays, the employer shall pay wages, which reduced daily wages, hourly wage is not removed 11 days of legal holidays stipulated by the state. Accordingly, reduced wages daily wages, hours: daily wages for the month wage income, monthly pay days; hourly wage monthly wage income / (monthly pay days × 8 hours); monthly paid days = (365 --104 days), December = 21.75 days. How to understand the working day for 20.83 days, and monthly salary for 21.75 days? According to the provisions of the state, year, season, month working days and the calculation of approved winkles the statutory holidays, provisions, season, working on the average system working days, its practical significance is mainly enterprises in the development of product processing technology, accounting work, the labor intensity and labor work, is one of the important the basic parameters of the labor wage management. Because the statutory holidays for the holiday with pay or paid holidays, calculating the wage, including the calculation of approved overtime pay can not eliminate the statutory holidays. The state of daily wages, hourly wage of conversion, and takes the form of normative documents to the public at the result, its practical significance lies in publishing a standard, authoritative salary conversion method, solve the salary quantitatively problems encountered in real life. All sectors of society to comply with this provision, in the same scale, fair to solve various fields and industries, the wage verification problem. The most direct significance is convenient to calculate overtime pay, so that the standard calculation of overtime wages, standardization. Understand this truth, we can work for 20.83 days, and monthly salary for 21.75 days is not difficult to understand.

   Thirteenth, over the holidays overtime wages shall be respectively calculated. According to the "State Council on modifying the 'national holidays and festivals approach' decision", new year's day, Spring Festival, Tomb Sweeping Day, international labor day, Dragon Boat Festival, the Mid Autumn Festival, National Day, for national holidays. Then, the unit leadership arrangements for staff in the national holiday the day before or the last 22 points to the next 6 points in the overtime work, how to account? The 2008 New Year's day as an example to illustrate: New Year's day, December 30, 2007 --2008 year in January 1st holiday, a total of 3 days. Including: January 1st (Tuesday) as a statutory holiday, December 31st to Saturday. Its December 31st 22 points to 24 points should be based on the hourly wage of 200% meter, the early morning of January 1st 1 points to 5 points should be based on the hourly wage of 300% meter. The rest of the Spring Festival, Tomb Sweeping Day, international labor day, Dragon Boat Festival, the Mid Autumn Festival, National Day statutory holiday overtime wages across the festival, according to the Ministry of labor and social security "on employees' annual average monthly working hours and salary conversion notice", by analogy calculation.

   Fourteenth, the employer shall arrange the employees are entitled to paid annual leave. The State Council has issued "Regulations on paid annual leave for employees", and shall enter into force as of January 1, 2008. The Ordinance, a total staff of over 1 years but less than 10 years, annual leave 5 days; already full 10 year and less than 20 years, annual leave 10 days; already full 20 years, 15 days of annual leave. Units do not because of the need for workers to take annual leave, I agree with the workers, can not arrange for annual leave. The employee should not rest days of annual leave, the unit shall pay wages paid leave in accordance with the staff of 300% of the daily wage income. The unit not arrange annual leave for employees wages paid leave to give and not in accordance with the regulations, by the personnel department of the local people's government at or above the county level and the departments of labor security authority to order correction within a prescribed time limit; if it fails to do so, in order to pay wages paid annual leave of the unit, the unit should also be in accordance with the wages paid annual leave the amount of additional payment of compensation to the worker; refuse to pay wages paid leave, compensation, which belongs to the civil service and civil management personnel unit, the persons directly in charge and other directly responsible personnel shall be punished; as for other units, by the labor security department, personnel department or workers to apply to the people's court for compulsory execution.

   Fifteenth, without the approval of voluntary overtime cannot ask for overtime. According to the "labor law" "labor contract law" provisions, the enterprise can make do not conflict with the national legal overtime system, pay not less than the statutory standard of overtime pay for overtime work overtime system with. Visible, the employer shall pay overtime wages is the premise of "the employer according to the arrange laborer to work in legal standard working time" outside the actual need, the voluntary overtime work, the employer according to the above provisions can not pay overtime wages.

   Sixteenth, do not get overtime pay at the end of centralized clearing. According to the "labor law" "labor contract law" provisions in the form of money, wages should be paid monthly to labourers themselves, shall not deduct or delay the wage. Including hourly wages, wage wage piecework wage, bonus, allowances and subsidies, to extend the working time and the special circumstances wages. So, overtime wages shall be paid monthly to labourers themselves.

   Seventeenth, "overtime" and "duty" is not the same thing. Overtime and duty are two different concepts. Overtime refers to workers according to the requirements of employers, engaged in their production or work in legal festivals or holidays and other time; while on duty refers to workers according to the requirements of the employer, for certain non production responsibility in addition to the normal working day. That work overtime or on duty, mainly to see whether the employee to work in the original post, or whether the production or management task specific. The staff and workers to work overtime on duty to enjoy the treatment are different: pay overwork salary is legal, and duty paid according to internal rules.

   Eighteenth, illegal enterprises to extend the working hours of employees, against the legitimate rights and interests of workers, mainly is the illegal extended day working time (provisions is a violation of work 8 hours a day, work overtime after consultation, the general should not exceed 1 hours a day, such as special circumstances shall not exceed 3 hours); illegal extension work time (that is in violation of special circumstances the total monthly overtime shall not exceed 36 hours); at least a week rest against labor rights and legal holidays; illegal prolong pregnant more than 7 months and in mammals has not reached the age of 1 infant female worker during working hours. The above 4 kinds of circumstances, the employer shall bear legal liability in accordance with law. According to the "labor law of the people's Republic of China" and "labor security supervision regulations" provisions of article twenty-fifth, the administrative department of labor security of illegal extend working hours of labourers in administrative penalty units: one is the warning, applicable labor violations on the plot is slight, caused no actual consequences; two is fine, is suitable for the serious violation of labor and social security laws, regulations or rules, its amplitude must also nature, plot, consequences and illegal behavior adaptation. Fines can and other administrative punishment was used, but can not be repeated for the same illegal act. According to the provisions of this article, the employing unit violates labor laws, regulations or rules to extend the working hours of workers, in giving a warning at the same time, according to the number of workers being infringed, each according to 100 yuan of above 500 yuan of the following standards, the illegal employers fined. If not satisfied with the decision on administrative penalty of unit of choose and employ persons, in accordance with the "Administrative Reconsideration Law" and "administrative procedure law" provisions apply for reconsideration or bring a lawsuit. During the period of reconsideration or litigation, the decision on administrative punishment execution does not stop. In addition, because if the illegal extension work time causes damage to the employee, the employer shall bear the corresponding compensation liability.

 

Discussion on overtime

2010-07-04 Dong Runqing

   [case]

    Dispute Lau and units, including overtime, that many litigation request, wherein the light overtime a involving more than 10 million. Ms. Liu is the reason, the daily work in the unit work, often work overtime, but the unit has not actually paid to any overtime expenses. Ms Liu says its claim overtime work is based on the daily time card on the calculated, showing its peacetime work situation.

   However, it argues that the unit in the trial of Ms. Liu punch record because there is no sealed units, so it is not true. Unit normal Liu does not implement clocking, Ms. Liu has never applied to work overtime. Punch card records so on the basis of Ms. Liu provided to calculate overtime, the unit can not accept.

   [HR]

   Punch card records Liu can be identified, this topic in some HR personnel in disagreement. Senior management personnel square lady mentioned, first of all, punch records Ms. Liu is a recording of the import company, should not be regarded as overtime. Secondly, Ms. Liu punch record because there is no unit certificate, also cannot be recognized. Again, if Ms. Liu usually have to work overtime, shall timely put forward, should not be left in the disposable claim, even if unit weekday overtime pay is incorrect, the operation is very inconvenient. So MS Fang tend to not recognized Liu overtime claims.

   Mr. and Ms. Fang antithetical claims: punch record cannot miss liu submitted denied that of course, overtime and overtime burden of proof in the unit of this side, units shall produce relevant evidence. The unit now simply no punch card system, the court should be an investigation of the matter, determine the unit said is true.

   [lawyer commented]

   The case actually involves two topics:

   One is the problem of burden of proof in overtime, the second is the problem of determining overtime.

   In accordance with the "provisions of the labor dispute mediation and Arbitration Law" sixth article: labor dispute occurs, the parties to submit their ideas, have the responsibility to provide evidence. The evidence relevant to the dispute matters is controlled by an employer, the employer shall provide; the employer does not offer, it shall bear the adverse consequences. For the overtime pay proof is actually for the interpretation of.

   In accordance with the law, workers should first provide evidence for their claims, in this case, Ms. Liu should first prove unit executes overtime time system, such as a unit in the employee handbook for the attendance card provisions. Punch card records Liu provides basic to meet this point. Then for the unit, it shall provide relevant evidence in his custody, such as unit record punch card records. In this case, the unit that no card system is questionable, the court may consider according to the actual situation in a timely initiative investigation. If the verification unit has the attendance card system did not provide relevant documents, shall bear the burden of unfavorable consequences, punch card voucher Liu submitted can be recognized.

   But the recognition of the clock in Ms. Liu is not representative approved overtime Liu advocated. "Labor law" mentioned overtime refers to the unit arranges laborer to work overtime time, does not include workers volunteered to stay to work (or things outside of work). Punch card records usually record is a staff with time, but not unit arranges overtime time. If the units to establish a working system for examination and approval, shall provide the overtime vouchers after units approved, can not provide overtime approval certificate, shall bear the burden of adverse consequences. No overtime examination and approval system, the judge according to the actual situation in the card number of hours to determine a reasonable amount of overtime hours.

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