Question 6| What is the focus of the annual leave wage dispute?

Reporter: In all kinds of holiday wage disputes, almost everyone will encounter annual leave. What are the disputes over annual leave pay?

Pan Lina, former arbitrator of Shanghai Labor and Personnel Arbitration Commission and lawyer of Shanghai Baohua Law Firm: After years of practice, annual leave has been recognized by the vast majority of units. The main controversy is the calculation of the basis for the conversion of salary for the untaken annual leave to be taken. After the base number is determined, the three special problems of annual leave can be successfully solved.

The first question is, if the employee has not yet completed the first year of job hopping into the new employer, can he take annual leave?

According to Article 3 of the Regulations on Paid Annual Leave for Employees, employees who have worked for 1 year but less than 10 years shall have 5 days of annual leave; those who have completed 10 years and less than 20 years shall take 10 days of annual leave; and those who have completed 20 years shall take 15 days of annual leave. At present, if the employee jumps to the first year of the new employer, if the length of service is calculated continuously, the full year can enjoy 5 days of annual leave; if it is calculated in segments, it can only be counted as cumulative, and the new employer cannot enjoy annual leave in the first year. How exactly is it calculated? According to the current practice in Shanghai, that is, the end date of the employee's work in the previous employer, the work of the next employer begins, and there is no interruption in the period, which can be regarded as continuous calculation. If there is an interruption period between the two, even if it is only one day, it can only be counted as cumulative, not continuous.

The second question is, what should the employer do if the employee terminates the employee's labor contract and the unfinished annual leave?

At present, the focus of the dispute is that the employer believes that the annual leave is caused by the employee, and the non-leave is automatically invalidated. Employees believe that if they do not take annual leave, the employer will either arrange rest or pay wage compensation. In fact, according to the "Measures for the Implementation of Paid Annual Leave for Employees of Enterprises", when the employer and the employee terminate or terminate the labor contract, if the employee is not arranged to take the annual leave in the year, the number of days of untaken annual leave should be converted into the number of days of untaken annual leave and the untaken annual leave wage remuneration shall be paid according to the employee's working hours in the current year, but the part less than 1 full day after conversion shall not be paid the untaken annual leave wage remuneration. The conversion method is: (the number of calendar days in the current year has passed in the unit ÷365 days) × the number of annual leave days that the employee himself or herself should enjoy throughout the year - the number of annual leave days that have been arranged in the current year.

If the employee voluntarily submits his resignation, there may be the following circumstances: one is that the employee notifies the employer in writing to terminate the labor contract 30 days in advance in accordance with Article 37 of the Labor Contract Law, so that the employer can arrange for the employee to take a leave during the notice period, and if the employer can arrange but does not arrange, the employee shall pay the corresponding wages and remuneration; the other is that the employee unilaterally terminates the labor contract in accordance with Article 38 of the Labor Contract Law, and once the reason for his termination of the labor contract is established, The employee does not need to give advance notice of the termination, that is, if the employer does not arrange annual leave for the current year due to its own reasons, it shall pay the employee the corresponding wages and remuneration.

If the employee terminates the labor contract illegally, and the employer's inability to arrange for the employee to take annual leave is caused by the employee's reasons, then the employer does not need to pay the employee's corresponding wages and remuneration.

The third question is, during the period when the employee is on annual leave, can the employer deduct the attendance bonus?

Some employers believe that the attendance award refers to the reward that can only be obtained after deducting a few days of rest or rest for a few days in the whole year, and the employee enjoys annual leave without going to work, of course, this part of the attendance award should be deducted. Employees believe that taking annual leave is a right granted to workers by law and cannot be regarded as absenteeism.

For now, the law is clearly on the side of the employees. Article 2 of the Regulations on Paid Annual Leave for Employees clearly stipulates that the wage income of employees is not affected by annual leave. Secondly, the "Implementation Measures for Paid Annual Leave for Employees of Enterprises" stipulates the meaning of paid wages very clearly, which refers to the average monthly wage of the employee after excluding overtime wages in the 12 months before the employer pays him the wage remuneration for the untaken annual leave. In other words, the "salary" here does not refer to the basic salary, fixed salary, but refers to all wage income excluding overtime pay, that is, wages, bonuses, allowances, subsidies, commissions, etc. belong to the category of "salary", including the full attendance award. Moreover, we deduce that since the double wage paid by the employer during the period of untaken annual leave is calculated in accordance with the above standards and includes the part of the attendance bonus, then when calculating the conversion of untaken annual leave into three times the wage, in addition to the double paid, the actual wage paid should also be calculated in the same way.

Source: Labor Watch