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Some time ago, we launched (link to read "Ten Major Impacts of Power Curtailment on Labor Employment" - after an article, it has received widespread attention from everyone, and there are some consulting questions sent by enterprises, such as daytime power outages to arrange employees to work at night, how to operate the unit will there be no legal risk? Is it necessary to pay a night shift allowance to arrange for employees to work at night... Today we're going to talk to you about the night shift allowance.
1. Is the night shift allowance mandatory?
Since night shift labor has a greater impact on the physical strength, energy and psychological pressure of workers, in practice, some units make up for and buffer the physical wear and tear caused by night work by issuing night shift allowances. However, due to the fact that there is no document issued throughout the country to force units to issue night shift allowances, only guide enterprises to reasonably determine the standard level of night shift allowances in combination with the salary income level of employees and the actual situation of local economic and social development, so there are large differences in the implementation of night shift allowances in various places. For example, in Tianjin, Hebei and Shandong, it is clearly stipulated that enterprises must pay night shift allowances, while Beijing, Inner Mongolia and other places are not clear. In addition, for employees in special positions, such as difficult posts under the coal mine, the former Ministry of Labor and Social Security clearly issued a document to arrange night shifts and should pay night shift allowances in accordance with the law. In view of the above situation, our [Vernacular Labor Law] team has sorted out the national night shift allowance distribution policy, and some places are listed as follows:
If you want to know the national night shift allowance distribution policy, welcome to scan the code to add operation consultant WeChat for free.
2. Night shift allowance v night shift overtime pay
In practice, some hr mistakenly believe that night allowance and night shift overtime pay are the same thing, and think that if the night shift allowance is paid, there is no need to pay overtime pay, but in fact, the meaning of night shift allowance and overtime pay is not the same. Among them, the night shift allowance is the compensation for the physical and mental losses caused by the worker's night work, which is mainly applicable to the basic production skills of the personnel; while the night shift overtime pay is the compensation for the loss of rest time by the worker due to the extended working time, which can be applied to any position. In summary, if the unit stipulates that the night shift should be paid a subsidy, and arranges for the night shift of the worker to constitute overtime, the unit shall issue the night shift allowance and the night shift overtime pay at the same time in accordance with the law, and cannot offset each other.
3. Does the minimum wage include the night allowance?
According to the relevant provisions of the "Minimum Wage Regulations", when the employee provides normal labor, the wage paid by the unit to the employee shall not be lower than the local minimum wage standard after excluding the night shift allowance, that is, the minimum wage standard published by various places does not include the night shift allowance (link to read "4 Questions to take you to the minimum wage (with the most comprehensive policies and standards in China)"), so in this case, the unit needs to calculate the night shift allowance for the month according to the number and standard of the employee's night shift.
4. Can an employee terminate the contract and claim economic compensation on the grounds of arrears of night shift allowance?
Some scholars believe that although the night shift allowance belongs to the wage, because the night shift allowance is excluded from the minimum wage, the unit is not paid in time and does not make the employee's life lose security, and the support of economic compensation causes a greater burden to the unit, which can easily lead to the cancellation of the night shift allowance by the enterprise. However, in judicial practice, some courts, on the grounds that the night shift allowance is a labor remuneration, hold that the enterprise's arrears of the night shift allowance to the employee is the arrears of labor remuneration, and find that this act constitutes the reason for the employee's legal termination of the labor contract, and finally supports the employee's demand for economic compensation. Therefore, in order to avoid losses to the unit, it is recommended that the unit that pays the night shift allowance should be implemented in accordance with the regulations of the unit.
5. Is the claim that the night shift allowance is subject to the limitation period of arbitration?
According to the relevant provisions of the Labor Dispute Mediation and Arbitration Law, if a dispute arises during the existence of the labor relationship due to the arrears of labor remuneration, the employee's application for arbitration is not subject to the limitation period of one year; however, if the labor relationship is terminated, it shall be filed within one year from the date of termination of the labor relationship. As far as night shift allowance is concerned, since the allowance is included in the scope of wages in the Provisions on the Composition of Total Wages, in judicial practice, the arbitration limitation period for employees to apply for payment of night shift allowance during the existence of the labor relationship is generally not limited by one year.