중국노동법 (휴직, 휴가 등)

01 Rest and vacation

The company is obliged to provide employees with a reasonable vacation. However, since disorderly abuse of leave affects the normal production management of the company, it is necessary to strictly control and manage the procedures and requirements of the employment rules. Making clear and fair procedures rules in advance, and enforcing them fairly according to the regulations is a way to prevent unnecessary labor disputes.

1. Rest time

the legal definition of working hours
A time when a company does not have free rein in its time due to a cause.
For example, if a person is not engaged in actual nursing activities or driving, such as a nurse or driver, but cannot freely control (use) his or her time due to waiting for work. In other words, the criteria for the entry of labor hours will depend on whether workers can freely use (control) related waiting and break times.

The regulation method of break time during work
In general, manufacturers' production lines often have official breaks of 10 or 20 minutes in the morning, afternoon, and afternoon. There are many companies that exclude this time from working hours and operate the hours for an extended period of time.
The workers may argue that this break, unlike the lunch break, is on standby without leaving the workplace and should be included in the workday as it is intended to meet the physical needs of the body. However, there is still no law in China on whether breaks during working hours are recognized or granted during working hours, and from corporate perspective, meal times, breaks, and tee times can be considered to be free-controlled breaks for workers other than legal hours in principle.
Therefore, it is necessary for an entity to specify the following example in order to prevent the possibility of a labor dispute occurring. If there is no in-house regulation, there is a possibility that the court will make a ruling at its discretion in the event of a labor dispute, taking into account the workers' right to free control and working environment.

[Example] Regulations on Employment Rules for Rest in Work
In case the break is arranged in the middle of the work hours for 20 minutes in the morning and 20 minutes in the afternoon, and the break time is deducted from the work hours.
ᄋ Working hours: 9:00-12:00, 13:00-18:40. Lunch time is 12:00-13:00
During the day on duty, the department avoids intermission during two work sessions, each time for 20
每,,20分

Regulations for the Holiday Time for Lunch
Relevant legal regulations regarding whether meals, breaks, and gymnastics are included in working hours
It does not exist. Because the problem is related to overtime costs, companies are required to preempt employment rules.
It is necessary to define the benefits clearly in .

[Example] Regulations for Holiday Time
(1) Method of stipulating working hours with legal risks
ᄋ Office hours are from 9 to 18 and 12 to 13 of them are from lunch time
[Explain] After defining the working hours as a total of nine hours from nine to eighteen, one of those hours was defined as a luncheon. In this case, a labor lawsuit could be filed asking for the full nine hours of work, saying that the working hours were defined as nine hours, and that they did not actually have a free lunch time by banning them from going out and staying in the factory during the morning hours.
(2) A method of defining working hours without legal risk
1 Working hours: 9:00-12:00,13:00-18:00. Lunch time is 12:00-13:00
2 Labor contracts and employment rules are clearly agreed: "The dinner time is a break, it is not included in the labour time 午餐时间为休息时间, 计入工作时间

 

2. Weekdays and statutory holidays

(1) Weekdays (high-level days)

China currently has a five-day workweek, so standard working-hour workers can enjoy two days off per week of work, and in China the weekly holidays are treated as "free" (the legal public holiday is "paid.")
Article 38 of the Labor Law stipulates that "companies should guarantee workers at least one day of rest each week." Accordingly, an entity may implement a one-day workweek within the 40-hour-per-week range. In other words, if the average working day is 6 hours and 40 minutes (=40 hours and 6 days), there is no need to pay extra overtime.

[Wage management on six-day workweek]
For companies that distribute services and produce them, it may be necessary to implement a one-day workweek. In this case, 200% of the total work hours added up on Saturdays are added to the "Saturday fixed overtime (周六)" category, which divides some of the wages and replaces them with these items, effectively avoids the risk of overtime costs.

 

(2) Legal holidays

The "Rules for Annual Holidays and Anniversary Holidays in China" (National Decree No.513) sets an annual legal holiday for 11 days. On legal holidays, working security must pay 300 percent overtime.
1 All Public Holidays: 11 Days.
- Fabric (January 1st)
- Spring Festival (Seotdal Geumeum-Jeongwol 2nd)
- Cheongmyeong Day (Today of the lunar calendar)
- Labor Day (May 1st)
- Danojeol (Music Dano Day)
- Mid-autumn festival (on the day of the Mid-Autumn Festival)
- National Day (October 1-3)
2 Vacation of some common people
- Women's Day (March 8): Women and women have an anti-Japanese holiday.
- Youth Day (May 4): Anti-Japanese holidays for young people over the age of 14.
a leave of absence of three minorities
- Governments in ethnic minority areas can define holiday days according to ethnic customs.

[Some issues of public holidays on father's and young men's occasions]
The Department of Labor and Social Security’s" Reply to Holiday-related Wages for some citizens (No. 18 2000)" provides salary remuneration for the celebratory activities organized by the company and employees who work normally, but not for overtime." The above regulations mean that they do not participate in celebratory activities, and that they are not considered extra work if they are just doing normal work.
On the "38th Day of the Father's Day," a number of Chinese state-owned enterprises are routinely granting anti-Japanese leave. However, in the case of foreign-invested or private Chinese enterprises, anti-Japanese vacations are rare. However, there is a case of distributing simple gift certificates or movie tickets, using public fees to encourage female employees.

 

3. Vacation

(1) Procedure for approval of an application for leave of absence

Companies should stipulate the screening and approval procedures for their subscription in the employment rules. Management of audit approval at the request price
As a matter of fact, the following are the important points to be clarified in the employment rules.

1 Clarification of the screening approval process for a request
ᄋ stipulate the requirements, qualifications, and qualification rights of each position of the petitioner.

 

[Example] The procedure and examination approval of a company's vacation application
Job grade vacation application number of days of examination and approval (审批权)
Authorize sector accounting within 2 days (including) of accounting
Audit of sector accounting for more than 2 days  Approving general accounting
Accounting-level or higher - Approving gross accounting

ᄋ Any person who does not go through formalities or leave his or her place of work without approval, or who does not go to work without taking a vacation extension after the vacation has expired, shall be treated as an unauthorized leave.
ᄋ Whether there is insufficient reason for a request, or if there are any problems in the operation, the sector accounting takes into account the situation,
You can either not grant them a vacation, shorten the vacation period, or postpone the application for the vacation itself.

2 Usage of vacation application and registration of personnel department
ᄋ For vacation application, prepare the vacation application form [Sample 6-1] in advance, obtain approval from the supervisor, and send the approved vacation application to the personnel department to register.

3 Mandatory submission of holiday certification data
ᄋ Weddings require a marriage certificate, maternity leave or husband's nursing leave in the hospital, and a copy of death certificate when taking a reinstatement leave.

(2) Types of vacations

1 Private holiday (假)

Since the company has the right to approve private leave, the entity may set up a restriction on private leave in the employment rules. In general, it is common to limit the number of private vacation days per year to "15 days". If the company pays a vacation source in excess of the number of private vacation days set by the employment rules, the company may not approve it, and if the employee ignores it and pushes ahead with the vacation, it may be treated as an unauthorized absence and given corresponding punishment.
Private vacations are free of charge. Since the abuse of private vacations causes disruptions to the company's production and management activities, it is necessary to deduct full-time allowances, including meal allowances and transportation allowances, as well as wage deductions, in order to control the misuse of private vacations. The wage deduction is calculated by multiplying the monthly wage by 21.75 (the number of legal wage calculation days) by the number of days of subscription.
[Example] In case the monthly wage is 1,800th place and the daily wage is 82.76th place and (1800 ÷ 21.75).
82.76 x 5 days = 413.79 WINN OFF when private vacation exists

On the other hand, since annual leave is mandatory in the case of microsurgery, it is necessary for the employment rules to stipulate that personal leave should be used first and then private leave should occur.

2 Wedding leave

With the implementation of the "full-blown two-child policy" from January 2016, the marriage-promoting vacation of late marriage in the era of soloist policy was cancelled. As a result, the number of wedding leave days has been drastically reduced.