CCTV News (Reporter Yang Yifei): Recently, a reporter from CCTV's "News +" learned during the interview that some workers will encounter the situation of "the company's unified holiday, but offset it with annual leave".
A netizen told reporters that when his company arranges a unified vacation, if the employee does not have annual leave, he will even be asked to use personal leave as a replacement. "Generally, we will take 4 days off in addition to holidays before the year, and give priority to the use of annual leave and overtime for compensatory leave, but for employees with less than one year of entry experience, if the overtime compensatory leave is not enough, the company will treat those days as personal leave and deduct the corresponding salary."
Another netizen also said in an interview with reporters that the situation of "no annual leave, personal leave" also exists in their own company, and most people will obey the company's mandatory personal leave arrangement, "old employees are used to such regulations, and new employees dare not talk about dissatisfaction."
Yang Baoquan, a lawyer at Beijing ZhongYin Law Firm, said that personal leave is initiated by employees, and the unit compels employees to take personal leave, which is a disguised evasion of responsibility. From a legal point of view, the employee can file a refusal.
In addition, lawyer Yang Baoquan also pointed out that employees are entitled to annual leave as a legal right, and it is not a benefit that can be arranged or not arranged by the employer. If the employee wants to use the employee's annual leave, the employer should clearly indicate that the company is using the employee's annual leave when arranging the employee's leave, and the employee cannot be informed by verbal explanation, nor can the attribute of using the leave not be stated in the notification document. If the company fails to implement the annual leave, the employee will not take annual leave, and the consequences shall be borne by the company.
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News+: What are the provisions of mainland law on annual leave?
Yang Baoquan: First of all, it needs to be made clear that employees enjoy annual leave is a legal right, and it is not a benefit that can be arranged or not arranged by the unit.
The law clearly stipulates that employees should be entitled to annual leave if they have worked continuously for more than one year. However, it should be noted that the experience of continuous employment for one year refers to the fact that the employee has worked for the same or more employers for 12 consecutive months without interruption after joining the work, and it does not mean that the employee has to recalculate the annual leave as soon as he or she joins a new company. Employees who have accumulated 1 year but less than 10 years shall take 5 days of annual leave; 10 days of annual leave for those who have completed 10 years but are less than 20 years; Those who have completed 20 years of leave will take 15 days of annual leave. National statutory holidays and rest days are not included in the annual leave.
News+: Who has the final say on how to take annual leave?
Yang Baoquan: Normally, when and how many days of annual leave should be discussed by the employee and the unit. In this regard, the Regulations on Paid Annual Leave for Employees clearly mentions that the employer shall make overall arrangements for the annual leave of employees according to the specific conditions of production and work, and taking into account the wishes of the employees themselves.
Therefore, the normal annual leave is applied for by the employee, approved by the employer, or directly arranged by the employer to the employee to agree, which is the most ideal state.
When arranging leave, the employer needs to have an employee leave notice, which clearly indicates that the company uses the employee's annual leave for this leave, and cannot inform the employee in the form of oral explanation, nor can it not indicate the attributes of the use of leave in the notification document. If the company fails to implement the annual leave in the end, the company shall bear the consequences, and the company shall pay 300% of the salary according to the number of days of the employee who have not taken the annual leave.
News+: Some netizens said that they have been employed for less than a year and have not yet taken annual leave. Is it reasonable for the company to require personal leave to be used instead when the company arranges the holiday?
Yang Baoquan: If the employee does not have annual leave at present, and the employer compulsorily arranges the employee to take personal leave, it is neither reasonable nor legal.
Personal leave is actually an employee's voluntary behavior, generally speaking, it is an act of applying to the company for the employee's family or personal needs, or for other needs. It is unreasonable for the employer to require employees to take personal leave, and it is a disguised evasion of responsibility by the unit.
In this regard, from a legal point of view, the employee can file a refusal. It is not legally valid for the employer to unilaterally arrange personal leave, so the employee can retain relevant evidence and seek legal help, which is actually difficult to achieve in the employer's illegal behavior.
If the employee's application for personal leave is approved by the employer, the employer may not pay wages in accordance with the law, but if it is not the personal leave applied for by the employee, but the personal leave arranged by the employer, and the employee does not sign the personal leave application form, the compulsory arrangement of the employer is invalid.
News+ reporter: Is the annual leave restriction rule of "giving priority to annual leave for sick leave and not taking annual leave across years" reasonable?
Yang Baoquan: First of all, in the practice of some of the company's rules, although these restrictive rules are universal, they are not necessarily legal. Employees are entitled to sick leave, and the sick leave itself is paid leave. Forcing an employee to take sick leave in lieu of annual leave is an illegal offence.
In addition, in the system of many units, there is a misunderstanding that annual leave cannot be crossed.
In essence, the Regulations on Paid Annual Leave for Employees stipulate that if it is necessary for an employer to arrange annual leave for employees across years due to the characteristics of production and work, it may arrange it across one year.
If the employer is unable to arrange for the employee to take annual leave due to work needs, it may not arrange for the employee to take annual leave with the consent of the employee himself. 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.
In practice, many employers have changed the prohibition of taking annual leave across years to the rule that "if the annual leave is not taken at the end of the year, the annual leave will be automatically cleared and the salary and remuneration will not be tripled", but the law does not clearly stipulate that the annual leave must be taken in the same year, and such a mandatory rule is contrary to the law.
News+: How should employers and employees resolve disputes over annual leave?
Yang Baoquan: Employers should fully realize that paid annual leave is a legal right of employees, which is not only a mandatory rule, but also involves employees' sense of identity with the unit.
First of all, the employer should fully protect the legitimate rights of employees and let employees take all their leave.
Second, employees should also abide by the basic rules of the company when using their vacations, and everyone should be in the spirit of mutual understanding. According to the situation, the employer should have the personal will of the employee to build a long-term and relatively stable labor relationship.
Finally, in some "coercion traps", we also support employees to defend their rights. For example, when some employees apply for annual leave, the company has not agreed to the employee's application for annual leave on the grounds that they are busy with work and have no time to arrange, or they use sick leave instead of annual leave. For the company's illegal acts, employees can take up legal weapons to defend their rights at the appropriate time.