Chinese average paid leave of 6.29 days, how to take annual leave, the company has the final say?

Every holiday, the topics of "holiday off" and "paid leave" will rush to the hot search. In the discussion on "whether to adjust the leave", many netizens said that "truly implementing the paid leave system" is the top priority.

Recently, a survey by the Ministry of Human Resources and Social Security showed that nearly half of the people did not enjoy paid annual leave.

According to the calculation of the length of service of in-service employees, the average paid annual leave per capita in mainland China is about 10 days, but in fact, the average number of paid annual leave days per capita is only 6.29 days, and the employees of private enterprises are even less than 4 days, and more than 72% of the employees of private enterprises do not fully enjoy the annual leave.

Among them, the situation of employees of manufacturing enterprises enjoying paid annual leave is very unsatisfactory, and even reduced to a "right on paper".

According to the results of the survey of the All-China Federation of Trade Unions on the situation of manufacturing workers, the average working hours of manufacturing workers are 5.68 days per week, which is higher than the average of 5.51 days for all employees, and the proportion of employees who work 6 days or more is 61.46%. Overtime is even more serious among front-line manufacturing workers, with 74% working 6 days or more.

Why can't paid leave be implemented?

As early as 1994, the mainland established a legal system of paid annual leave in the labor law. In 2008, the State Council promulgated the Regulations on Paid Annual Leave for Employees, which clarified the rights of employees to paid annual leave in the form of a State Council order.

It stipulates that if an employee has worked for 1 year but less than 10 years, he or she 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. Employees are entitled to the same salary during the annual leave period as they would during normal work.

However, it is worth noting that the "Regulations" do not make mandatory provisions for the implementation of paid leave, and the unit shall make overall arrangements for the annual leave of employees according to the specific conditions of production and work, and considering the wishes of the employees themselves. With the consent of the employee himself, the employee may not be arranged to take annual leave. Employees shall be paid three times their wages for the number of days they should have not taken.

This leaves room for "bargaining" for the implementation of paid leave.

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.

In practice, some employers directly use compensation to replace employees' vacations, while some employees are willing to voluntarily give up paid annual leave and replace it with monetary compensation for overtime pay.

In addition, the main problems reported by workers are that enterprises "do not allow them to take leave", they "dare not take leave" and "cannot take leave".

Xiao Liang has been in the company for two years and is still a "newcomer", because she is engaged in operations, she needs to be "on call and on call at any time". "I had five days of paid annual leave, but last year I didn't take a day off. First, there are fewer people in my position, and if I take a break, my colleagues' workload will be heavier; Second, as a newcomer, I am not too embarrassed to ask for leave, and I am busy until the end of the year. ”

"It is difficult to ask for leave, and I need to hand over to other colleagues, for fear of causing trouble", "everyone has not taken leave, and I am embarrassed to ask for leave", "the overall competitive pressure of society is intensified, and I dare not take it" have become the reasons why many workers give up paid annual leave.

Implement paid leave

The need for "supervision" and "punishment"

In recent years, the "implementation of paid leave" has been the direction of policy promotion. On July 31, 2023, the General Office of the State Council forwarded the Notice of the National Development and Reform Commission on Measures to Restore and Expand Consumption, which clearly stated that "the paid leave system will be fully implemented, and off-peak leave and flexible work and rest will be encouraged".

Dai Bin, president of the China Tourism Academy and director of the data center of the Ministry of Culture and Tourism, said that one of the reasons why it is difficult to implement paid leave at present is law enforcement, and creating a more conducive social atmosphere for leave requires our legal departments and administrative departments to keep up.

Wang Qiyan, director of the Leisure Economy Research Center of Chinese University, pointed out in an interview that some small enterprises cannot fully implement the paid leave system because of low labor efficiency and high labor costs. He suggested that the paid leave system should be gradually implemented in stages, industries and types, such as promoting large-scale and high-efficiency enterprises to take the lead in implementing it. In addition, there should be a supervision mechanism and a punishment mechanism, and specific rules should be clarified to promote implementation.

If there is a dispute over annual leave, how can employees protect their rights?

The worker may report to the local labor administrative department, and the personnel department or labor and social security department of the people's government at or above the county level shall order the employer to make corrections within a time limit; If the employer fails to make changes within the time limit, in addition to ordering the employer to pay the wages and remuneration for the unused annual leave, the employer shall also pay additional compensation to the employee according to the amount of the wages and remuneration for the unused annual leave.

Workers may apply for mediation to the labor dispute mediation committee or grassroots people's mediation organization of their employer, and if an agreement is reached through mediation, the worker may sign a mediation agreement with the employer, and the employer shall perform in accordance with the mediation agreement.

If the employee applies to the labor dispute arbitration commission at the place where the employer is located or where the labor contract is performed, the statute of limitations for arbitration of the employee's claim for unused paid annual leave is one year. Labor arbitration is a necessary procedure for labor litigation, and arbitral awards have legal effect and can be applied to the people's court for compulsory enforcement.

If the employee is not satisfied with the arbitration result, he or she may file a lawsuit with the people's court where the arbitration institution is located within 15 days from the date of receipt of the arbitration award, requesting the court to grant final relief.

Under what circumstances can an employee not take annual leave in the current year?

Employers shall protect the employee's right to take annual leave in accordance with the law, but not everyone has the annual leave stipulated by law, and not all of them can enjoy it every year, according to Article 4 of the Regulations on Paid Annual Leave for Employees, employees are not entitled to annual leave in the following five situations:

Employees enjoy winter and summer vacations in accordance with the law, and the number of days of vacation exceeds the number of days of annual leave;

Employees take personal leave for more than 20 days and the employer does not deduct wages in accordance with regulations;

Employees who have worked for 1 year but less than 10 years and take sick leave for more than 2 months;

Employees who have worked for 10 years but less than 20 years and have taken sick leave for more than 3 months;

Employees who have worked for more than 20 years and have taken sick leave for more than 4 months.

In addition, Article 8 of the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises clearly stipulates that if an employee has already enjoyed the annual leave of the current year, but one of the last four of the above circumstances occurs during the year, he or she will not be entitled to the annual leave of the next year. (Orange Persimmon Interactive)