Do I need to pay overtime under the irregular working hours system? Full text

Article 6 of the Measures of the Ministry of Labor on the Examination and Approval of Enterprises Implementing the Irregular Working Hours System and the Comprehensive Calculation of Working Hours System makes it very clear that for employees who implement other work and rest methods such as the irregular working hours system and the comprehensive calculation of working hours system, enterprises shall, in accordance with the relevant provisions of Chapters I and IV of the Labor Law of the People's Republic of China, adopt appropriate methods such as centralized work, centralized rest, alternate rest and flexible working hours on the basis of ensuring the health of employees and fully listening to their opinions. Ensure the right of employees to rest and leave and the completion of production and work tasks.

Legal analysis: From the perspective of the national legal provisions, there is no provision for the overtime of the irregular working hours system, and it is generally believed that the irregular working hours system does not calculate overtime hours and overtime pay, and only in some areas such as Shanghai and Shenzhen in the wage payment regulations stipulate that overtime on statutory holidays and irregular working hours system personnel also have overtime pay, which is paid at 300% of the daily wage. Employees can agree with the employer on the issue of overtime in the employment contract to protect their rights and interests.

Legal basis: Ministry of Labor's "Measures for the Examination and Approval of Enterprises' Implementation of the Irregular Working Hours System and the Comprehensive Calculation of Working Hours System" Article 6 For employees who implement other work and rest methods such as irregular working hours and comprehensive calculation of working hours, enterprises shall, in accordance with the relevant provisions of Chapter 1 and Chapter 4 of the Labor Law of the People's Republic of China, on the basis of ensuring the health of employees and fully listening to their opinions, adopt appropriate methods such as centralized work, centralized rest, alternate rest and flexible working hours. Ensure the right of employees to rest and leave and the completion of production and work tasks.

Ministry of Labor's "Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China" Article 67 Employees who have been approved to implement the irregular working hours system shall not be subject to the restrictions on the standard of daily extended working hours and the standard of monthly extended working hours as stipulated in Article 41 of the Labor Law, but the employer shall adopt appropriate working and rest methods such as flexible working hours to ensure the employees' right to rest and leave and the completion of production and work tasks.

In general, enterprises that have been approved to implement irregular working hours are not required to pay overtime pay. However, it should be noted that if an employer arranges an employee to work on a statutory holiday, it shall still pay overtime pay at a rate not lower than 300% of the employee's salary.

Article 41 of the Labor Law The employer may, after consultation with the labor union and the workers, extend the working hours due to the needs of production and operation, and generally shall not exceed one hour per day; If it is necessary to extend the working hours due to special reasons, the extended working hours shall not exceed three hours per day, but shall not exceed thirty-six hours per month, provided that the health of the worker is guaranteed. Article 44 In any of the following circumstances, the employer shall pay wages and remunerations higher than the wages of the workers for normal working hours in accordance with the following standards: (1) Where workers are arranged to work longer hours, they shall be paid wages and remunerations not less than 150 percent of the wages; (2) Where a worker is assigned to work on a rest day and cannot be arranged for compensatory leave, a wage remuneration of not less than 200 percent of the wage shall be paid; (3) Where a worker is assigned to work on a statutory holiday, a wage remuneration of not less than 300 percent of the wage shall be paid.

The irregular working hours system refers to the working hours system adopted by workers who cannot be measured by standard working hours or who need to work flexibly due to the limitations of the nature and characteristics of the work, or who need to work flexibly, and there is no fixed time limit for the commuting time of the employee on each working day.

The standard working hours system and the comprehensive calculation of working hours system are both a kind of regular working hours system, which calculates the amount of labor according to the working hours of the old people, while the irregular working hours system is a work system that measures the labor volume of laborers.

The implementation of irregular working hours system, except for statutory holidays, other hours of work are not counted as overtime. In units or workplaces that implement irregular working hours, there is no overtime pay except for statutory holidays.

Based on the above provisions, we can understand that on statutory holidays, any worker has the right to rest, and workers who work on this day, regardless of the working hour system, should receive overtime pay of 3 times the salary.

1. What should I do if I work more than 44 hours a week?

However, because the employer violated Article 38 of the Labor Law by failing to arrange one day off per week, the employer should pay overtime pay in accordance with Article 44 of the Labor Law, i.e., it should pay overtime pay not less than 200% of the wages for 6 hours a week. It is not that overtime is not paid or that overtime is only paid for 2 hours. The standard working hour system means that employees work 8 hours per week and 40 hours per week, and at the same time, employees are guaranteed one day off per week.

2. If the company adopts irregular working hours and comprehensive working hours system. As long as the total actual working hours do not exceed the total statutory standard working hours during the comprehensive calculation period, even if no one day off per week is arranged, the employer is not required to pay overtime pay, but if it catches up with the work on statutory holidays, overtime pay shall be paid. The comprehensive working hours system refers to the working hours system that comprehensively calculates working hours on a weekly, monthly, quarterly, and annual basis.

The irregular working hours system refers to the flexible working hours system adopted by employees who cannot arrange work according to standard working hours or need to work flexibly due to the unfixed working hours due to the production characteristics of the enterprise, the special needs of the work or the scope of responsibilities.

The irregular working hours system refers to a working time system adopted by employees who need to go to work continuously or are difficult to commute to and from work on time due to the characteristics of production, the special needs of the nature of the work or the scope of duties, and cannot apply the standard working hours or need to work flexibly, which is one of the basic working time systems in China.

The irregular working hours system does not implement the provisions on overtime pay, except for some provinces and cities, except for statutory holidays. If an employee who is subject to piece-rate wages is arranged by the employer to extend his working hours after completing the piece-rate quota task, he or she shall be paid wages at a rate not less than % of the unit price of the piece-rate working hours of the employee in accordance with the principles stipulated above.

With the approval of the labor administrative department to implement the system of comprehensive calculation of working hours, the part of the comprehensive calculation of working hours exceeding the statutory standard working hours shall be regarded as extended working hours, and the wages for the extended working hours shall be paid to the workers in accordance with these provisions.

Employees who practice the irregular working hours system are not subject to the above provisions.

The implementation of the special working hours system (including the comprehensive calculation of working hours and irregular working hours system) shall be subject to the approval of the Human Resources and Social Security Bureau, and after approval, the approval decision shall be posted and publicized in the unit, otherwise there may be a risk that the application of the special working hours system will not be recognized. The State implements a system of working hours in which the daily working hours of workers shall not exceed eight hours and the average weekly working hours shall not exceed 44 hours.

Extended Materials. Because the irregular working hours system is likely to cause damage to the rights and interests of employees, the state has strictly limited the content of this part, and enterprises are not allowed to make agreements with employees in labor contracts without authorization, and they can only be implemented after the approval of the relevant administrative departments. The labor relationship between the worker and the employer determines that the worker is bound by the rules and regulations of the employer.

Legal basis

Interim Provisions on Payment of Wages".

Article 13 After the worker has completed the labor quota or the prescribed work tasks, the employer arranges for the worker to work beyond the statutory standard working hours according to actual needs.