"90% of the labor arbitration cases I am currently handling will involve compensation for unused annual leave. It has been 16 years since the implementation of the Regulations on Paid Annual Leave for Employees in 2008, and there are still so many people who cannot take full annual leave. Yao Junchang, senior partner of Beijing Weiheng Law Firm and director of Weiheng Labor Law Professional Committee, was a little emotional.
The "May Day" holiday is approaching, and the topic of compensatory holidays has once again become one of the hottest topics. "The public holidays in the mainland excluding compensatory holidays are 11 days", "Have you considered single holidays for 'May Day' compensatory holidays" and other topics have frequently appeared on the hot search lists of various platforms.
Questionnaire:
Of the 162 persons, 40 have not taken a single day of annual leave in the past three years
On January 1, 2008, the Regulations on Paid Annual Leave for Employees came into effect.
It stipulates that employees who have worked for one year but less than 10 years shall have 5 days of annual leave, 10 days of annual leave if they have completed 10 years but less than 20 years, and 15 days of annual leave if they have completed 20 years. National statutory holidays and rest days are not included in the annual leave. Employees are entitled to the same salary during the annual leave period as they would during normal work. For the number of days of annual leave that should be taken by the employee, the employer shall pay the annual leave salary and remuneration according to 300% of the employee's daily wage income.
Although there are clear regulations, there have been problems with the implementation of annual leave. According to the eighth survey of the All-China Federation of Trade Unions, 32.8 percent of employees have neither received paid annual leave nor compensation, and 6.4 percent of employees have not taken the required number of days of paid annual leave.
In a September 2020 reply, the Ministry of Human Resources and Social Security mentioned that survey data from 60 cities showed that about 60% of employees who have implemented a paid annual leave system (excluding those that can take winter and summer vacations) and have the conditions for leave (working for one year) can enjoy paid annual leave. In other words, 40% of people are still not entitled to paid annual leave.
The reporter recently made a questionnaire on the issue of paid leave, a total of 162 people participated, of which 68 people have taken annual leave in the past three years, accounting for about 42%, 54 people have taken annual leave but have not taken it, the two parts together accounted for 75%, of which the proportion of leave in first-tier cities is significantly higher than that in second- and third-tier cities and counties. Twenty-eight people said that their company did not take annual leave, and 12 people had annual leave but did not take a day in the past three years.
In the survey, 85% of respondents said that the unused annual leave will be cleared directly by the company or postponed, without paying three times the salary. Fifty-five percent of respondents said that their annual leave would be cleared when they left the company, rather than requiring it to be taken or paid as a salary.
For the implementation of annual leave, there are large differences among people in different industries.
An employee from a manufacturing factory in Shandong told reporters that his production workshop has been working three shifts, and even weekend rest cannot be guaranteed, not to mention paid annual leave. A practitioner in the financial industry said that his company has a clear annual leave system, which can be implemented in most cases, but it will limit certain times and do not allow vacation, which may sometimes lead to the expiration of his annual leave being invalidated.
A civil servant from Heilongjiang said that whether they can take annual leave depends mainly on whether there are many things in the unit. There are many things to do in my department, and I haven't taken annual leave for many years, and it is impossible to ask for a salary.
What is the difficulty of taking annual leave?
There are many restrictions on annual leave that can be set by your employer or department
In the questionnaire, the two most common reasons for not taking full annual leave were the inability to take full annual leave due to the many restrictions set by the employer, and the high pressure of work, and the fierce competition and voluntary abandonment.
The three most popular options for restricting the use of annual leave are restricting the maximum number of days that can be used at a time, requiring that it cannot be used at a specific time, and requiring a specific justification. In addition, some interviewees said that they have also encountered restrictive measures such as not being able to take consecutive holidays with statutory holidays, and the company has no restrictions but department leaders refuse.
Xiao Chen, who has worked in a state-owned enterprise in Nanjing for two years, told reporters that he has never taken annual leave. The company's work pace is very fast, there are many tasks, Xiao Chen has been conscientious as a newcomer, hoping to leave a good impression on the leader. She worries that when other colleagues are busy, she will make her boss think she is lazy.
Unlike Xiao Chen's entanglement, Liu Hao, who works for an Internet company in Beijing, told reporters that the main obstacle to his annual leave is his group leader. Obviously the company's policy allows, but his team leader will always ask him to postpone his vacation plan on the grounds that there have been too many things recently.
The well-off paid annual leave of a programmer in a large Internet company is very embarrassing. The company is fast-paced, stressful, and has strict attendance, and there is no pay on the day of personal leave, and the salary on the day of sick leave is 80% of the minimum wage standard, in order to avoid wage loss, his annual leave is all used to deduct sick leave and personal leave. "It's full and it's as if you haven't had a day off."
An HR practitioner who has worked for more than 20 years explained that most formal enterprises in first-tier cities generally do not set up obstacles for employees to take annual leave, except that they are not allowed to take continuous long leave. However, in practice, in many fast-paced and stressful departments, the department head will not want his employees to take vacations, and there will be a situation where the company system mentioned in the questionnaire allows but the department leader refuses. There are also many people who face great pressure from appraisals and promotions, and they are forced to give up their annual leave in order to make a better impression on their leaders. As for employees taking the initiative to use annual leave to deduct personal leave and sick leave, it is the company's most "happy" situation.
The Ministry of Human Resources and Social Security once replied to the relevant suggestions of the National People's Congress deputies and analyzed the reasons for the lack of paid leave, mentioning that the leave of employees of enterprises has brought about vacancies and increased labor costs, which affects the initiative of enterprises to implement the paid annual leave system.
Yao Junchang analyzed the controversy over paid annual leave encountered over the years, and he believes that many companies have adopted a vague approach to the issue of annual leave. They will neither actively arrange for employees to take annual leave, nor will they prohibit employees from taking vacations, but will wait for employees to apply for it and decide whether to approve it based on business circumstances. "They have a kind of luck mentality, if the employee does not take annual leave, after two years the statute of limitations has expired, they can no longer claim it, and the company can save a lot of money. ”
It is difficult to protect the rights of annual leave:
Almost no one applies for arbitration for annual leave alone
Search for "annual leave" as a keyword on the judgment document network, and you can see 125334 documents. However, if you look at the details of the precedents, you will find that almost all of these disputes are added as one of the claims when the two parties claim compensation in the event of a resignation dispute, and there are very few labor disputes caused by paid annual leave alone.
Yao Junchang told reporters that most labor arbitrations are after the employee and the company have a resignation dispute, and the employee claims compensation for illegal termination, overtime pay, wage difference and other compensation, and the compensation for unused paid annual leave will be added to it. There are only two disputes arising solely from the failure to implement paid annual leave, among the many labor dispute cases he has handled over the years.
▲Questionnaire on paid leave
In the questionnaire, 55% of the respondents chose to "fight for the company if the annual leave is not implemented", 23% chose "to endure it silently", and only 21% chose to "protect their rights and interests through litigation or arbitration".
"According to the thinking of many workers I have contacted, I will endure it under various pressures such as promotion and assessment, and I will not take annual leave if I do not take it, and when I leave my job, I will ask you to get back three times the salary of annual leave at one time. There is no need to turn against the company directly because of this, after all, it is not easy to have a job. When it comes to resignation, if there are no other disputes, there is generally no longer a claim for annual leave compensation through labor arbitration. Yao Junchang said.
Zhu Lijia, a professor at the Party School of the Central Committee of the Communist Party of China (National School of Administration), also said in an interview that it is difficult to take paid leave, mainly in private enterprises. Some private enterprise employees have unstable earnings and must work hard to keep their jobs.
Expert Advice:
Regulatory authorities can only solve the problem if they take the initiative
"Enterprises respond passively, waiting for the statute of limitations to expire, and workers swallow their anger and wait for the time to leave the company to settle accounts. Paid leave is left to dry. Yao Junchang summed up the current situation of the annual leave issue.
Zhou Changzheng told reporters that although the implementation of the paid leave system has improved significantly compared with previous years, it is still not fully implemented, and the main reason is the lack of corresponding law enforcement, resulting in enterprises not implementing paid leave will not face serious legal consequences. "The labor inspectorate does not actively deal with it, and it is expensive and difficult for workers to apply for arbitration on their own. ”
Zhou Changzheng believes that in recent years, under the promotion of policies and frequent issuance of documents, the implementation of paid annual leave has been much better. However, if you want to solve the problem on the enterprise side, you must rely on law enforcement, otherwise it will be useless.
Yao Junchang believes that paid annual leave is different from the social security provident fund, and it cannot wait for the employee's complaint and report before processing. "The worker is most concerned about his vital interests, arrears of wages, non-payment of social security, failure to pay provident fund, involving his personal survival issues, he will definitely actively report. But for most workers, annual leave is almost optional compared to a stable job, and they don't just report it for it. ”
Yao Junchang believes that in order to implement the paid leave system, the regulatory authorities need to take the initiative to conduct spot checks on a regular or irregular basis, and seriously deal with companies that do not implement them. In this way, paid leave can be truly implemented.
For ordinary workers, Zhang Chen, a lawyer at Jintai Law Firm and a part-time arbitrator of the Beijing Haidian District Labor and Personnel Dispute Arbitration Commission, suggested that on the one hand, it is necessary to apply for annual leave to the employer in a timely manner, and take as much leave as possible according to the company's overall arrangement. Because there is a timeliness problem in arbitration, if the arbitration statute of limitations is exceeded and no evidence can be adduced, it will affect one's rights and interests. If there is a record of applying for leave and there is evidence to be retained, the rights and interests will not be affected because the statute of limitations for arbitration has expired. On the other hand, try to choose to apply for annual leave when the production and operation situation is not busy, and cooperate with the company to understand each other.
Source: CCTV